E 

415 

-P54 




i 



SUBSTANCE OF REMARKS 

DELIVERED BY 

P. PHILLIPS, ESQ., 

PRESIDENT OF THE RAIL ROAD CONVENTION, 

HELD AT 

TALLADEGA, ALA., 

SEPTEMBER, 1S49. 
[published bt order of the convention. ]( 

MOBILE : 

PRINTED BY M C GUIRE & BALLENTYNEi 

' 1849." 



CORRESPONDENCE. 



TALLADEGA, September 27, 1849. 

Col. P. Phillips : 

In compliance with a resolution offered by Mr. White and 
unanimously adopted by the Rail Road Convention, held in this town, it becomes 
our duty, as well as privilege, to request for publication, a copy of the able and 
patriotic Address, delivered by you before that body on yesterday evening. 
Very respectfully, your ob't. serv'ts., 

JAMES SORLEY, ) 

W. M. KIDD, } Secretaries. 

DANIEL SAYRE, ) 

MOBILE, October 9, 1849. 

Gentlemen : 

In accordance with the request contained in your note of 27thult. ; 
I hand you herewith the substance of my remarks, made to the Talladega Rail 
Road Convention. I remain your obedient servant, 

P. PHILLIPS. 

To James Sorley, ) 

W. M. Kidd, > Secretaries. 
Daniel Sayre. ) 



REMARKS. 



Gentlemen Delegates : 

I cannot but be gratified with your cordial reception of the mo- 
tion, calling upon me to speak to the questions which have been so 
ably discussed the three days past. The compliment is doubtless 
intended to the city I have the honor in part to represent, and the 
only regret I feel in responding to it is my want of preparation as 
well as ability,- to do justice either to the subject or the constituen- 
cy which has confided in me. 

I feel that I do not over-estimate the occasion, when I say that 
this is the most important assemblage of the people of Alabama 
which has been convened since 1819, when they met to adopt their 
constitution and claim a place in this glorious galaxy of states. 
Not only important as to the immediate object to be attained, but 
still more so, in the influence it will exert in stirring up the minds 
of our people, and preparing the way for that energetic action, 
which shall leave them second to none in the great race of im- 
provement. And it is but just to add that the weight of character, 
the information, the talent, and the eloquence which are here con- 
gregated, show that the country is fully alive to the great interest 
involved and give earnest that what is here " resolved" will be 
executed. 

Spread out the map of our country and we see her immense 
territory washed on three sides by the waters of the Atlantic, the 
Gulf and the Pacific. 

Much the largest and richest portion of this domain is intersected 
by rivers which flow into the Gulf. The states on the Atlantic 
enjoy the oldest civilization and densest population. Those con- 
nected with the Gulf have a more modern rise, while the bound- 
less tract which still stretches to the extreme west was until our 
own day, to all practical purposes, " unknown land." Dreariness 
slept upon it, and the only ray which broke upon the gloom was 
shed from the convent which the proselyting spirit of the Catholic 
had planted upon the shores of the Pacific. 

With the accumulation of population and Cc iital on the Atlan- 
tic, grew the necessity of extended commerce — and now availing 
themselves of the great modern improvements, we find the states 
on the eastern border, from Massachusetts to Georgia, stretching 



I t 



4 

out their iron arms to our very doors, not only to supply us with 
their produce and manufactures, but to draw away our commerce 
to their own markets. 

The great contest now waged is, whether the cities of the Gulf, 
represented by New Orleans and Mobile, will maintain the trade 
which contiguity, sectional and state interests, and the very ar- 
rangement of nature itself seem to entitle them to, against the 
efforts of Boston, New York, Philadelphia, Baltimore, Richmond, 
Charleston and Savannah. The millions which these cities have 
already invested in this enterprise, and the energies displayed in 
pushing it forward, are worthy the great results which success will 
reward them with. It is then for our people to say whether they 
will yield their commerce to build up splendid cities upon the At- 
lantic or send it to enrich cities of their own. 

Let us then turn our attention particularly to our own state, to 
examine her localities and ascertain what her true interests de- 
mand, in reference not only to her own improvements but to the 
relation she bears to the enterprise of neighboring states. 

No sooner was Alabama carved out of the Mississippi Territory 
than the want of commercial intercommunication between her 
Northern and Southern counties at once pressed itself upon the 
attention of her citizens. Instead of finding an easy market within 
the State, and at a short distance, the want of proper facilities 
forced the North Alabamians to launch their products upon the 
dangerous and expensive navigation of the Tennessee, to seek one 
at the distance of 1500 miles from home. This commercial es- 
trangement carried with it social and even political effects. Ala- 
bama w T as one only in name, and the want of that identity of feel- 
ing and interest which are essential to constitute a prosperous State 
was at the inception of her existence found to be an evil that should 
at any cost be remedied. 

As early as 1819 this subject was brought to the attention of the 
people by Governor Bibb. At that time the means contemplated 
for connecting the extremes were by turnpike, or canal, running 
from the Tennessee river to the navigable waters of the Alabama. 

From that period to this, the execution of this design has been 
regarded by every section of the state as a consummation most de- 
voutly to be desired — At no time have our people lost sight of it ; 
and no adverse fortune has been able to shake them from their pur- 
pose. The feeling has grown with their growth and strengthened 
with their strength : and now after the lapse of thirty years the 
question is again rising up in the most imposing form to chide them 
for delay, and challenge them to action. 

Looking, gentlemen, to the spirit of the times, and the great 
progress which neighboring states have made ; looking to the 
men who compose this body — to the zeal, energy and determina- 
tion which have characterized their speech and acts — I feel justified 



in proclaiming in your name, that the accepted time has come, and 
that the speedy union of the Tennessee river with the Mobile bay is 
now hey and the reach of ordinary contingency. 

The diversity of opinion which has been manifested in this body 
is not as to the propriety of this work, but as to the route. Upon 
the first, the convention is not only agreed, but enthusiastic in their 
agreement. Nor is there any difference with reference to the 
northern terminus — Gunter's landing being the only one indicated. 
The four propositions are to run to Selma, to Wetumpka, to Mont- 
gomery, or a point on her rail road, for the southern terminus. 

Let us look back for a moment, to ascertain what has heretofore 
been done in reference to the selection of a route. 

The anxiety of the public early led to explorations by competent 
surveyors, and a road to the east of Coosa to terminate at We- 
tumpka or Montgomery, was examined and declared impractica- 
ble. It is stated by members of this convention that Mr. Bingham, 
one of the persons alluded to, was employed by the state for this 
specific purpose, and that he made a thorough examination, though 
no instrumental survey. Whether from confidence in the correct- 
ness of these reports or from other information, the idea of obtain- 
ing such a route, if ever entertained, seems to have been generally 
abandoned, and the public attention was very soon enlisted in the 
examination of another line, commencing at Selma and pursuing 
the direction of the Cahawba Valley. 

As early as 1S36 the necessary steps were taken for the organi- 
zation of a company on the basis of this line, and in the following 
year the legislature passed an act to incorporate it. Large sub- 
scriptions were made to the stock, and an instrumental survey by 
Mr. Dexter, whose ability as an engineer is not denied, located* the 
road to run from the town of Selma on the Alabama through the 
counties of Dallas, Perry, Bibb, Shelby and St. Clair. 

As the report of the engineer has for many years been before 
the public, it would be improper to go into the details showing the 
facility of this route. Suffice it to say, the work was vigorously 
prosecuted, and upwards of twenty seven miles (commencing at 
Selma,) were graded through a very difficult portion of the line, 
when the enterprise was suddenly buried in the ruins of that dis- 
astrous revulsion which not only shook the monetary system of 
this country to its center, but forced even the Bank of England to 
save itself from bankruptcy by the aid of French loans. 

From that period to the present, our people have been slowly 
but steadily rising from the state of pecuniary bondage which the 
mania of speculation had imposed upon them. They again feel 
their strength and are determined to turn it to a just account. At 
the last session, the legislature renewed the privileges which under 
the old charter had been forfeited ; and a convention of the coun- 
ties upon this route, recently held at Shelby Springs, not only fully 
approved of the recommencement of the work, but invited a sub- 



6 ... ■' ""*" i 

aoription to the stock ; books for which, according to the term* of 
the act, are to be opened at Selma on the 24th of October. 

Notwithstanding all these facts, this convention is called upon 
to adjourn, without acting in the premises — or if it proceed to 
act, then it is zealously urged to adopt a line on the east of the 
Coosa, terminating at the towns of Wetumpka or Montgomery. 
The accuracy of the surveys or explorations which pronounced a 
route on that side of the river impracticable, has however been 
called in question. It is truly said there is expressiveness in silence, 
and the fact that in this long agitation of the subject, the counties 
interested in that line have never had a satisfactory survey or in 
any manner demonstrated its practicability or propriety, but have 
permitted the public to turn its undivided attention to the Selma 
route from 1S36 to within a few months past, is to my mind almost 
conclusive that no easy route can be obtained and affords strong 
argument against the proposition to delay our action. 

Measuring the distances by direct lines, and Montgomery, I pre- 
sume, is some ten miles nig^ier to Gunter's landing: than Selma, but 
the great preponderance of evidence shows the route to the west 
of the Coosa to be so much easier than any route which could be 
obtained to the east; that the increase of distance will be more than 
compensated in the difference of cost, whether its terminus be We- 
tumpka or Montgomery. In right line distance, West Point is 
nighest, but this junction is further objectionable as increasing the 
inducement to carry our trade by the Georgia improvements, which 
will soon connect with it, to the markets of Charleston or Savan- 
nah, to the great injury of our state interests. 

I then prefer the Selma route and shall so vote : 

1. Because other things being equal, the people on that line first 
organized for the work. 

2. Because they have expended upwards of $100,000 in surveys 
and grading, much of which is still of value and is offered as a do- 
nation to the new company. 

3. Because this route runs through most of the richest mineral 
counties in the state, including Bibb, Shelby, Talladega, and Ben- 
ton, touching Cherokee and St. Clair. 

3. Because this route is the most central and affords equal ad- 
vantages for lateral branches to the east and west, thus embracing 
within its influence larger sections of our state. 

5. Because this route turns our trade to our own port, leaving 
the profits thereof to increase the power of the state and aid in the 
extinguishment of her heavy debt. 

6. Because this point is more accessible to market at all seasons 
of the year, the navigation of the Alabama being more uncertain 
above Selma than below it. 

7. Because this route saves the distance of one hundred and 
ten miles of river navigation, Selma being that much nearer to the 
Gulf and in this proportion saves time, freight and insurance. 



J 

/ 1 

The immediate effect of this great work will be to open up new 
sources of industry. No one who has been attentive to the cotton 
culture as pursued in the south-western states but recognizes its 
exhausting character. The opinion is generally prevalent among 
our cotton planters that it is cheaper to purchase new lands than 
to manure old ones — and hence, like the locust, they settle only to 
destroy. It then becomes necessary to fix this population. To 
do this we must create facilities for transportation, and by the in- 
troduction of the comforts and conveniences of life, convert the 
temporary settlements of Alabama into " Homesteads,'''' whose per- 
manency will draw around them increased improvement, with in- 
creased affection. 

The diversion of a portion of the labor now employed in the 
culture of cotton will not only influence favorably its value, but by 
introducing new staples, the State would in a great degree be re- 
lieved from the disastrous consequences which now result from the 
frequent fluctuations in its price. Depending upon this single 
staple, it becomes the great regulator of values, and the whole bu- 
siness of the country, and all its contracts are subjected to change 
and uncertainty produced by causes beyond control, and which no 
foresight can anticipate. 

I confess then, that much of my preference for the Selma route 
arises from its embracing; so laro;e a section of the State, rich in 
inexhaustible beds of iron, coal, limestone and marble. Cotton, it 
is true, plays a conspicuous part in the commerce of the world, but 
in point of mere money value it is inferior to many of the subor- 
dinate productions of agriculture ; and I feel confident in declaring 
that the day is coming, and not very distant, when even in Ala- 
bama, more wealth will be dug out of her bowels than are now 
gathered from her bosom. 

Not only does our State possess this vast wealth, but what is of 
still more importance, it has superior advantages of location. The 
distinguished Lyell who lately visited this country, principally 
to acquire geological information, and whose scientific attainment 
has recently won him knighthood, describing this region, says: 
"|It forms a southern prolongation of the great Appalachian coal 
field, with which I was unacquainted when I compiled my map pub- 
lished in 1S45, of the geology of North America. Its geographical 
situation is peculiarly interesting, for being situated in latitude 
33° 10' north, it constitutes at present the extreme Southern 
limit to which the ancient carboniferous vegetation has been 
traced in the northern hemisphere whether on the east or West 
side of the Atlantic." 

Professor Brumby states its extent as being ninety miles long, 
from north to south, and ten to thirty wide. 

Not only do these extensive coal fields constitute the extreme 
southern deposite, but construct this road, and you bring at once 
large portions of them within forty hours of the Gulf of Mexico! 



s 



Those who know the value of this article and remember that k 
is the foundation of manufacturing prosperity, and that it is rapidly 
occupying the same relation to commerce — will at once appreciate 
the magnitude of the interests here involved. 

Speaking of the effect of the coal production upon the general 
prosperity of a country, McCullough says : " Our coal mines, 
are the principal source and foundation of our manufacturing 
and commercial prosperity ; and no nation, however favorably sit- 
uated in other respects, not plentifully supplied with this mineral, 
need hope to rival those that are, in most branches of manufactu^ 
ring industry. To what is the astonishing increase of Glasgow, 
Manchester, Birmingham, Leeds, Sheffield, &c, and the compara- 
tively stationary or declining state of Canterbury, Winchester,, 
Salisbury and other towns in the south of England, to be ascribed? 
The abundance of coal in the north, and its scarcity and consequent 
high price in the south, is the real cause of this striking discrepant 
cy. Our coal mines have conferred a thousand times more real 
advantage on us than we have derived from the conquest of the 
Mogul Empire, or than we should have reaped from the domin- 
ions of Mexico and Peru." 

It is evident then that our people with cheap transjjortation 
(already owning the cheapest labor in the world,) may command 
the trade of the Gulf in coal, and enter into competition with oth- 
er States under the most favorable advantages for everything their 
soil is capable of producing. 

Much has been said in this discussion of the newly developed 
wealth of California and the vast commerce of the Pacific in ref- 
erence to the channels of trade. Gentlemen have risen above 
prose in their eloquent descriptions. But though they indulged 
in " thoughts that breathe and words that burn," they could not 
paint too strongly the gorgeous spectacle we are soon to behold. 

Of the various routes which have been proposed to meet this com- 
merce, that by Tehuantepec promises the best chance of success, 
It is said to be nearer than Nicaragua by 1,000, and than Pana- 
ma by 1,400 miles. The width of the Isthmus, as given by Moro is 
135 miles. The river Coatzacoalcos here empties into the Gulf, 
affording, according to Balbi, an excellent navigation of more than 
100 miles with a fine harbor at its mouth. Descending the table 
land of Tarifa to the Pacific, although the conveniences of that 
point do not equal those in the Gulf, we have a very general 
concurrence among scientific men that at a moderate cost all the 
difficulties may be obviated, and a harbor established equal to all 
commercial wants. 

Should no sinister influences control the selection of the local- 
ity, which is to realize the dream of ages, a western route to Asia 
— then Tehuantepec will be the grand highway between the two 
oceans — and New Orleans and Mobile become, from proximity, 
the great entrepots for the rich commerce passing to the east. 



/ 



lhave not alluded to the great overland reads proposed to be 
rim from Memphis or St. Louis — because public opinion is fas1 
determining upon their impracticability. We may set the ball in 
motion, but it cannot reach home in our day. . 

It is very evident that much the largest portion of this com- 
merce will be carried on by means of steam vessels, and they 
must " coal" at some point in the G ulf ; and what point so suitable 
as the harbor of Mobile 1 

The coast survey, conducted by the federal government, has re- 
cently given to the public, in the most authentic form, a knowledge 
of the true importance of Mobile harbor. In a communication 
from A. D. Bache, the distinguished superintendent of that work, 
he states : 

" That the depth of water which can be carried over the bar at 
the entrance of Mobile Bay at mean low water is 20f feet, mean 
rise and fall of tide one foot, 

" The channel is perfectly easy, one course, N. 19° W. true go- 
ing through with one or two casts on the ridge of shoalest water. 

" The depth of water at the anchorage of the fleet of mer- 
chant vessels in the bay is 3^ fathoms. There is perfectly secure 
anchorage in any winds for large vessels off the west end of Mobile 
-Point in from eight to ten fathoms water, and distant from the 
shore from one to one-tenth of a mile. 

" In 1S32 the greatest depth which could be taken over the bar 
was seventeen feet. In 1841 it was nineteen feet, and in 1847 it 
was 20! feet, eacn at mean low water." 

He thus concludes: "From these facts it appears that the 
(neighboring) islands have been on the increase since 1832, 

WHILST THE BAR ITSELF CONNECTED WITH THEM HAS PASSED GRADU- 
ALLY SEAWARD, DEEPENING AS IT ADVANCED." 

The confidence which was inspired by the character of this in- 
formation soon led the "Royal Mail Steam Packet Company" to 
make Mobile its point for " coaling" intstead of New Orleans. 
Their steamers now enter the harbor every two weeks, and a 
market for coal is opened, which, though comparatively small, will 
increase with the increasing demand, until from the rich mines ly- 
ing on the route, together with those in the neighborhood of Tus- 
caloosa — we shall supply the largest portion of the immense quan- 
tity which will be required for the navigation of the Gulf, as well 
as for all local purposes of the country adjacent thereto. 

The character of the harbor as given by Mr. Bache, was fully 
confirmed by the entrance of the steamers. In a letter written 
by W. B. Liot, the general superintendent of the said company, 
he says : 

" Feeling some little degree of anxiety respecting the issue of 
the first attempt made by the Royal Mail Steam Packets to* cross 
the bar of Mobile, I paid particular attention to the soundings 

2 



10 



taken on board the Dee, when she entered the bay on the Slat 
January last, and 1 was gratified to observe that the shoalest water 
on the bar when we crossed it, was full four fathoms, (twenty-four 
feet) — the Dee's draft at the time being precisely seventeen feet. 
There were two leadsmen sounding when she entered the port — 
her engines were 'slowed' — the water on the bar was very smooth, 
and a light air of wind blowing from the southeast." 

In this connection, it is proper also to add, that a supply of Tus- 
caloosa coal was taken by this line of steamers on trial, and know- 
ing that it had been gathered by inexperienced hands and taken 
from the surface where it was easiest to be obtained, without any 
regard to its quality, some anxiety was felt in reference to the 
test by those of our citizens who took an interest in the experi- 
ment. They were gratified, however, by the result as evidenced 
by this publication : 

ROYAL MAIL STEAMSHIP DEE, \ 
Havana, February 25, 184*9. ) 
We hereby certify that the 106 tons of Tuscaloosa coal received 
on the 23d instant, is much better than that supplied on the 1st in- 
stant, and in point of consumption, is easy steaming coal. It is 
equal to the Welsh coal generally supplied to the company in the 
West Indies ; it requires a stronger draft for burning and has less 
clinker than some of the Welsh coal. 

D. GRANT, Chief Engineer. 
WM. ALLAN, Com. Dee. 
Now, when it is remembered that the coal furnished was pro- 
nounced equal to the Welsh, which is said, for steam purposes, to 
be superior to any other English coal, and furnished at a less price 
than could be afforded at the West Indies, and this in the very in- 
fancy of the business, we can easily calculate the extent of our ad- 
vantage, when large capital shall be invested in regular mining 
operations. * / 



* We have an analysis of our coal reported by Sir C. Lyell in the Journal of 
the Geological Society of Loudon. We give it below, together with that of 

coal of other localities in the United States. 









1 


ANALYSIS. 


STATE. 


LOCALITY. 


BY WHOM 1 
ANALYZED. 


j Carbon 


Vol'e 
Mat'r 


Ashes 


Virginia. 

Maryland. 
Pennsylvania. 
Alabama. 


Clover Hill, 
IMidlothian, 
Blackheath. 
Froslburg, 
George's Creek. 
Blossburg, 

Tuscaloosa. 


Johnson, 
(i 

Cleinson, 
State Rep. 
London Journal. 


54.63133.04 
53.01 33 25 
58.79 52 57 
74.53ll5.13 
70.75i 16.03 
73.74 ! 15.00 
62.S0 32.80 
60.76| 12.96 


10.13 
14.74 
8.46 
10.34 
13.22 
11.26 
5 20 
6.08 



this analysis it appears that the Tuscaloosa coal is not surpassed by any 

bituminous varidty in the United States. 

(See the able report of* Professor Garland on plank roads.) 



11 



What has been said in reference to the abundance of coal may 
be applied to the stores of iron, limestone and marble, with which 
this section of our State is stratified. Already, forges have been 
established in the counties of Benton, Cherokee and Talladega, 
witlk most satisfactory results as to the quality of the ore. A 
gentleman largely engaged in the manufacture of iron in Penn- 
sylvania, lately visited this State with a view of transferring his 
interest to it. I conversed with him on his way home. The re- 
sult of his examination fully justified the reports he had received 
of the quantity and quality of the coal and iron — but the cost of 
transportation to Mobile deterred him from the enterprise. He 
remarked on parting, " once build a railroad to the mineral region, 
or so much of one as will ensure its being completed, and Ala- 
bamaians may, if they will, stick to cotton ; eastern skill and capi- 
tal would soon be at work among the mines." 

The highest consideration then appeal to us to construct a road 
nearest to market and therefore cheapest, and when we contemplate 
the great trade which is destined to be poured upon it to supply 
the demand, not of our own State alone, but of foreign countries — 
does it not fall very short of the magnitude of the subject, if not 
intended as irony, to urge the adoption of Montgomery or W e- 
tumpka as the terminus, points more than onehundred miles further 
from the shipping port, because this would afford an opportunity to 
huckster a feiv Jiat loads of produce along the river between those 
toicns and Selmaf 

But the utility of the road does not stop here — crossing the 
Coosa in Talladega, and meeting it again at Gadsden or Will's 
Creek, it will afford a cheap and easy transportion for the produce 
which is now waggoned at a great expense from the counties of 
Talladega, Benton and Cherokee to Wetumpka over rugged roads, 
the difficulties of which were graphically described by a dele- 
gate from the county first named, who said that the wrecks of 
their waggons and the bones of their horses strewed along the 
road, could furnish the fires, and manure the fields of all Coosa. 

It will bring down the Coosa, which is navigable from this point 
to Rome, in Georgia, the trade which now goes up stream to seek 
a market on the Atlantic. 

! Reaching from hence to Gunter's Landing, the road will at once 
draw to it the trade of the counties lying north and south of the 
Tennessee river in this State, as also the southern and southeas- 
tern counties of the State of Tennessee. 

From Decatur, (which lies fifty miles to the west of Gunter's 
Landing) to Chattanooga 160 miles, the Tennessee river is navi- 
gable for a large portion of the year, and this section of country 
is said to produce 60,000 bales of cotton, to which add 20,000 
made upon the Elk which empties into the Tennessee near Deca 
fcur, at the point where the obstruction begins. 



12 



The counties which lie west and below the shoals, would speed- 
ily complete their improvement to Gunter's, and would add 50,000 
bales more. Thus we have 130,000 bales, nearly all of which 
now goes on a journey of over 1500 miles to New Orleans. 

To appreciate the value of the contemplated road to the country, 
its chances for profitable business, we should look to the charges 
of transportation by the various routes now used by tha people of 
that section of the State. 

I have casually in my possession, two printed advertisements for 
freight, one from " Chandler's Through Transportation Line from 
Charleston or Savannah to Decatur," and the other from the 
Coosa River Steamboat Company" from which I make these ex- 
tracts : 

Chandler's Line. 
[From Clmrlcston or Savannah to Decatur. ] 

Boxes, bales, dry goods, shoes, saddlery, glass, paints, oils, 
drugs, confectioneries, shovels, spades, scythes, baskets, 
tubs, and other light articles — per 100 lbs $2 20 

Molasses, sugar, coffee, liquor, bagging, rope, cheese, tobac- 
co, leather, hides, wool, copper, tin, sheet iron, nails, 
crockery, hardware, and other articles not enumerated be- 
low—per 100 lbs 1 35 

Flour, bacon, (in casks or boxes,) pork, beef, lard, tallow, 
butter, beeswax, pig iron, linseed oil — per 100 lbs 1 05 

Cotton— per 100 lbs 1 10 

Coosa River Company. 
[From Gadsden to Rome, and Rome to Charleston.'] 

Boxes and bales, dry goods, saddles, paints, oils, 

drugs, &c, . . 155 

Georgia domestics, sugar, coffee, liquor, bagging, 

rope, and all other articles — per 100 lbs., 30 92 

Molasses, per hhd., ., 4 00 15 00 

Do. per bbl., 1 50 4 25 

Salt, Liverpool, per sack, 30 110 

Barouche, close carriages, wagons, each, 5 00 30 00 

Buggies, gigs, sulkies, carryalls, 4 00 18 00 

Shovels, spades, scythes, brooms, doz., - « . . 30 1 00 

Gunpowder, 25 lb. kegs, 40 1 00 

Ducks, fowls, in coop, per doz., 35 83 

Geese, turkeys, in coop, per doz., 75 2 75 

Cotton, per 100 lbs.,... 17 65J 

I have no published list of freights by way of the Tennessee to 
New Orleans, but understand that the average cost of getting 
cotton to this market is about $3 a bale, and the up freight $2 a 
barrel : at certain seasons less, at others more. The navigation 
is not only tedious but uncertain, and these causes operate upon 
the producers in the Tennessee valley often to a ruinous extent 
by disabling the producer from taking advantage of favorable 



13 



changes in the market. If I were tfo assert that the loss to Nortli 
Alabama, thus occasioned, for ten years, would build this road, 
however startling the proposition, I believe it would be sustained 
by facts. 

By the best data derived from other roads, cotton could be trans- 
ported on the route from Gunter's to Selma at $1 per bale, arid 
barrels on an average of fifty cents, to which add seventy-five 
cents per bale, and fifty cents per barrel from Selma to Mobile. 

The counties of Lauderdale, Limestone, Madison and Jackson, 
lying on the north of the Tennessee river, contain a population of 
S0,000, and Franklin, Lawrence, Morgan and Marshall, on the 
south side of it, about 50,000. Gunter's Landing, which is fifty- 
five miles from the northeast corner of the State, is a convenient 
and nearly a central point whether you regard population or pro- 
duction. 

Assuming, then, the amount of 100,000 bales of Alabama 
cottons, sent by Chandler's line from Decatur at $1 10 

per 100 lbs.— $5 50 per bale, 500 lbs., $550,000 

Sent by the Tennessee^to New Orleans, at $3 per bale, 300,000 

Sent by the railroad to Selma, and thence to Mobile, at 

t $1 75 per bale, 175,000 

If we suppose that the counties of Cherokee, Benton, Tallade- 
ga, &c, which would make Gadsden where the road crosses the 
Coosa their shipping port, would furnish for exportation 30,000 
bales. 

The cost by the Coosa Company, would be $4 12^ per 



bale, $123,000 

On the Selma road, 52,000 

The Selma route compared with Chandler's line, on 

100,000 bales, saves, 375,000 

Compared with the Tennessee route, 125,000 

And on 30,000 bales at Gadsden, as compared with the 

Coosa River Company, 71,260 



Rating the up freights at one-half of the amount of the down 
freight, and making a proportional scale of charges, and the 
amount on freight saved, constitutes alone, sufficient inducement 
to undertake this work. Besides the difference in freight in re- 
gard to New Orleans, there is the heavy insurance and the long 
time occupied in reaching the market. 

Take these calculations, which do not pretend to strict accura- 
cy, and regard them only as approximations to the truth, and it 
will be found that the people of North Alabama, by the construc- 
tion of this road, would in a few years save in time insurance and 
freight, an amount equal to the whole cost of its construction. 

But we go a step farther, and assert that, regarding the work as 
a mere investment for money, it would prove profitable to under- 
take it. In this view, the interest of the road extends beyond our 
State boundary. ' 



\ 



From Counter's Landing to Chattanooga, a distance of 100 miles, 
the Tennessee is navigable for steamboats of heavy burthen, seven 
or eight months, and for boats of light draft, all the year. 

From Chattanooga to Knoxville, on the Holsten, (an eastern 
branch of the Tennessee,) there is a navigation of 200 miles more, 
six months in the year, for large boats. 

For 250 miles above Knoxville, the Holsten is still navigable 
for barges which descend the river, carrying produce to that town. 

From the point where the road will recross the Coosa, the river 
is navigable at all seasons to Rome, in Georgia, 150 miles. 

These statements would fully justify the expectation that large 
freights would be received, both from Tennessee and Georgia; 
and when we consider that the great Virginia and Maryland im- 
provements all tend in this direction, it is only to anticipate the 
work of a few years to say, that the link would soon be wrought 
which will connect them. This will be the great overland route 
from south-west to north-east, the shortest which could be estab- 
lished between New Orleans and Boston, and the income from 
mail service and the great travel will swell the profits of the en- 
terprise. 

A convention of delegates from the two States of Virginia and 
Tennessee, recently assembled at Greensville, Tennessee, to con- 
sider the best mode of promoting the construction of a railroad 
from Knoxville to the Virginia line under the charter for the 
" East Tennessee and Virginia Railroad." Samuel E. Goodson, 
Esq., of Washington county, Virginia, presided. About $150,000 
was reported as the amount of private subscription, and it was re- 
solved to apply to the Tennessee Legislature for subscription of 
a million and a half of dollars on the part of the State. The ad- 
vantages of the road are thus set forth : 

Resolved, That the construction of the East Tennessee and 
Virginia Railroad, chartered by the last legislature, tapping by its 
southern terminus at Knoxville, the East Tennessee and Georgia 
Railroad, and through that work already in progress of completion 
the " Georgia and Carolina" and Nashville and Chattanooga Rail- 
roads, and connecting by its eastern terminus with that already 
chartered and three-fifths of the stock taken by the State, from 
Lynchburg to the Tennessee line, would furnish to East Tennes- 
see, the markets of the Atlantic States and Gulf cities, and open 
a direct thoroughfare between the northeast and southwest, for 
the amount of travel and transportation, it must command, unsur- 
passed by any other line of equal extent in the union, 

In reducing the estimated profits of the road to figures, I rely 
somewhat upon a published calculation made for this work on the 
old Dexter line. 

100,000 bales from North Alabama, above and below the shoals in the \ 
Tennessee, including also the counties of Marshall. Blount, De Kalb, 
and St. Clair, at $1, $100,00^ 



15 



fVu.000 from Cherokee, Benton, Talladega, Sn.elby, Jefferson, i^ihb. 

Perry, Autauga and Dallas, at an average of 60 cants per bale, 30,000 

15,000 lbs. flour, 8,000 lbs. distilled spirits, 3.000 lbs. Irish 
potatoes, 25,000 lbs. oats, corn, &c, 7,000 lbs. fruit, on- 
ions. &c, 8,000 lbs. pork and beef, 66,000— 50c. 33,000 

8,000 casks bacon, at. $2, ] 6,000 

Bagging and rope, 1 0,000 

Iron, castings, salt, tobacco, limestone, &c, 35,000 

Coal 10.000 



214,000 

Add up freight equal to one-half. 117,000 

Forty passengers each way, at $8, 230,000 

Way travelling and mail,. 50,0Q0 



$611,000 

DEDUCT EXPENSES. 

10 engines $20 per diem - $62,000 

Keeping road in order, $200 per mile, 34,000 

50 hands at woodyards, water stations, warehouse, &c, 7,500 

Superintendence, t 5,000 

Collectors, . 5,000 

Three assistants at $500, 1,500 



Stationary power of necessary workshops and all other expenses, 17,000 

131,500 

$479,500 

Which upon an estimate of $2,000,000 is equal to twenty per 
cent. 

But though the dividends did not prove it the most profitable 
investment for money to the capitalist who was disconnected with 
the interests of the State : yet those who owned property within 
the influence of the road, would find in its increased value the 
largest compensation. The experience of the whole country, 
places this above doubt or controversy. 

Every consideration, therefore, which can address itself either 
to patriotic or pecuniary motives, speaks trumpet-tongued for the 
speedy completion of this great enterprise. 

But I hear it argued in this debate, that the citizens of Alabama 
cannot furnish the necessary capital ; that the means must be sup- 
plied by foreign aid; and that this road should take the route east 
of the Coosa to connect with the Montgomery and West Point 
road, in order to obtain the assistance of the Georgia and Carolina 
companies, whose lines will soon connect with it. It certainly 
would be paying dearly for this assistance were we to give so large 
a portion of our commerce in consideration of it. That the effect 
of this connexion would take the trade out of our State, is too clear 
for question. The very terms of the proposition itself imply it. 

We are cited to the fact by a delegate from Montgomery that 
the citizens of Charleston own $S0,000 in the Montgomery road, 
this may be all true . The citizens of Charleston believe that 
dieir interest will be subserved by completing the road through — 



16 



and this I think a much clearer proposition than that it will benefit 

the citizens of Montgomery. * 

But we are not driven to this alternative, we can struggle with 
our difficulties and manage our domestic interests without calling 
in the Russians, for the State is not so poor as this argument implies. 

It is true — if you judge her by the number of her canals or the 
length of her roads — she has done nothing. But let us look at her 
productions and remember her age. 

Take the article of cotton alone and we find the receipt at Mo- 
bile for 1848-9 530,000 

Add amount shipped from North Alabama to N. Orleans. . 96,500 
From East Alabama, shipped to Apalachicola 50,000 

675,500 

Deduct less amount received from Eastern Mississippi. . . SO, 000 

596,500 

Adding the amount which goes from the eastern counties to 
Charleston of which we have no account and we may safely put 
the crop at 600,000 — worth twenty millions of dollars — Alabama 
then ranks at the head of the cotton growing states, and valuing 
her by the receipt at Mobile, she stands in the public statistics 
fourth on the list of exporting states, New York, Louisiana, and 
Massachusetts alone out ranking her. But give her the benefit of 
her true amount and not the Mobile index, and old Massachusetts 
with all her age and wealth, must stand aside and give the third 
place to her young sister of the south-west. 

The whole number of acres in this state is estimated at. 32,460,080 

Of this our citizens already own 15,911,520 

For which they have paid the government $16,8SS,000 

Now add to this the enormous amount they have paid to Vir- 
ginia, &c, for so many thousand slaves, and all this accomplished 
in a country where the foot print of the Indian is yet to be seen, 
and we shall begin to discover there has been np lack of energy 
and enterprise here. 

In this estimate of strength we should not overlook the advanta- 
ges of an increasing population. By the census of — 

1820, population 127,901 

1830 " 309,527 

1840 " 590,756 

These figures demonstrate the energy and resources of our 
state. And when we consider that our citizens have made no in- 
vestments in stocks of any kind, can we assent to the proposition 

* Of course I mean those citizens who are not themselves stockholders. In 
the rapid multiplication of roads — it has been already demonstrated that the com- 
panies' interest may be often adverse to the interest of particular localities. Wit- 
ness the attempt to cross the river at Augusta, and the controversy between the 
stockholders and the citizens of Macon. 



17 

so emphatically announced that the road to Guntcr's landing- cannot 
be built without the help of foreign aid. No, gentlemen, we will 
first try our own shoulders to the wheel before we call on Hereuk-s. 

In the session of 1844, I brought to the notice of the legislature 
the propriety of executing a thorough geological survey of the 
state, a large committee was then appointed, and although it was 
unanimous in the opinion that an appropriation for that purpose 
should be granted, yet judging from the temper of the House, the 
measure would not carry, it was determined not to hazard the chan- 
ces of a defeat, but to wait for a more propitious season. I think the 
state is now so fully alive to its importance, that the application for 
a suitable appropriation should be made, and I trust that some 
gentlemen on this floor, who concurs with me, will move the adop- 
tion of a resolution by which this question shall be properly 
presented to the next Legislature. 

I may be told that the state has a large debt to provide for, and 
is therefore in no situation to make such appropriations. I fully 
appreciate the difficulty. No one recognizes more strongly than I 
do the sacredness of the obligation to her creditors, and the neces- 
sity of preserving in time to come, as she has through the vicissi- 
tudes of time past, her credit untarnished. But when dangers 
threaten, in peace or war, boldness of action is the highest pru- 
dence. It will not do for the state, through a false timidity or econ- 
omy, to refuse the exercise of that wide supervision of the inter- 
ests of her people which is a duty inherent in all governments. 
These interests are to a state what life is to an individual, and the 
first and greatest law calls for their preservation. 

I therefore desire that the state should exercise economy, but an 
enlightened economy, and I feel that in devoting the necessary 
funds for this purpose she will increase the means of her citizens 
and thus strengthen her own hands. 

Let the knowledge of our vast mineral resources bespread, not 
only before our own people, but before the world, in such authen- 
tic shape as will place them beyond question, and we will attract to 
our state both population and capital. 

The present period is auspicious, as money everywhere is com- 
manding but moderate interest. The inducements held out by the 
richness of our mines will be increased ten fold by the road to 
connect them with a market. The two interests will afford a reci- 
procal action ; the mines building the road, and the road working 
the mines. 

Any appropriation then which will be required for a scientific 
geological survey of the state will redound not only to the power 
and honor of the state, but in increasing the subjects of taxation, 
prove the value of an enlightened economy. 

I have already adverted to the advantages of this road, not only 
as it affects the interior, but as increasing and enriching our owr. 
and only seaport. At present, the city of Mobile pays one-sixth 
of the whole taxation of the state, and by adding the commerce 
which this road will give, you enable her to pay a proportionate 
increased amount. 



18 



Those of you who have visited Mobile know that a more eligible 
location for a seaport town does not exist south of Baltimore. 
The body of the city, and its beautiful suburbs, combine every re- 
quisite for the transaction of an extensive commerce, and the loca- 
tion of a large population. 

It will then become the pride as it is certainly the interest of Al- 
abama, with her annual produce of 600,000 bales of cotton, with 
her inexhaustible beds of coal, iron, limestone and marble, with her 
cheap compulsory labor, with her large and increasing population, 
to build up by fostering care this Emporium of her commerce. 

Relieved from the pressure of past misfortunes, the citizens of 
Mobile, actuated by a determination to take advantage of their 
commanding position, have entered with great energy and steadi- 
ness of purpose into the construction of a rail road reaching to the 
mouth of the Ohio, a distance of four hundred and sixty miles. 
The general route is up the left bank of the Tombigbee, passing 
through the county of Sumter, in this State, touching at Savannah 
on the great south western bend of the Tennessee, diverging thence 
to Columbus, near the junction of the Ohio and Mississippi. The 
effect of this work upon the interests of the city mnst eventually be 
very great. It brings the Mississippi valley and the Gulf within 
thirty six hours of each other, and thus establishes itself as an im- 
portant channel for the immense and varied produce of that most 
fertile portion of our country. It will also, when connected at 
Columbus with the Illinois road, which commences at lake Michi- 
gan, be the great line running almost due north through the very 
center of the Union. And should either of those gigantic routes 
from Memphis or St. Louis to the Pacific be ever completed — this 
will be the great branch through which nearly all of that commerce 
demanded by the Gulf will flow. 

As some mention has been made during this discussion of the 
attempt to establish a direct trade between Montgomery and New 
Orleans, thus cutting off Mobile, I beg leave to say for myself, and 
I am satisfied I but speak the voice of my constituents, that how- 
ever this attempt originates, though for many reasons I regret it, I 
do not complain of it. 

Commerce is founded upon mutual exchange, and its great 
law in all countries, and in every age, is, to to buy in the cheapest 
market and sell in the dearest. The citizens of Mobile do not ex- 
pect to see this great law of trade yield in their favor, either to 
feelings of friendship or motives of patriotism. 

If then the people of any section of our state, (uninfluenced by 
improper prejudice,) judge it to their interest to carry their pro- 
duce past the wharves of Mobile to New Orleans, it is not only their 
right, but their duty to do so. Let those who wish it make the ex- 
periment, and I feel sure they will soon become satisfied that they 
can do as well by staying at home as going abroad. A highly in- 
telligent merchant who lately resided in New Orleans, and now re- 
presents on this floor the town of Wetumpka, has frankly admit- 
ted that the price of cotton will average the same in both cities, 
but state* that in New Orleans no charge is made for storage and 



19 



drayage ; that the pressman now pays this, and finds his compen- 
sation in the price for compressing * Now it is evident that the 
charge for compressing must enter into the question of freight and 
this we know influences the price. So that the effect upon the 
producer is the same. For whether die price be affected indirectly 
through the freight, or d'rectly through the charges for selling, is 
but of little consequence. 

The project then I regard as purely a business transaction, and 
not founded upon feelings of hostility in any quarter; and I am 
supported in this by the emphatic declarations of the gentlemen 
from Montgomery, who state that the citizens of the capital had no 
share in fostering the enterprise, nor do they own a dollar of its 
stock. 

The persons therefore who are concerned in it are most likely 
those who, by their former connection with this state, would expect 
to reap the benefits of the transfer of trade to New Orleans, where 
they now reside. They will, therefore, continue it just as long as 
it is profitable, and quit it when it ceases to be so. 

* The average price of middling and fair Cottons in New Orleans for the years 

1844 and 1845... 6.25 

1845 and 1846... 7.37 

1846 and 1847. ..10.37 

1847 and 1848... 7.44 

1848 and 1849... 6.18—37.61 or 7f c. per lb. 

Average price of middling and fair Cottons in Mobile for the years 
1844 and 1845... 5.50 
1745 and 1846... 7.37 

1846 and 1847... 10.38 

1847 and 1848... 6.81 

1848 and 1849. .. 6.00—35,93 or 7 3-16c. per lb. 
Average rate of Exchange on London in New Orleans for 

1846 and 1847... 5.25 

1847 and 1848... 6.70 

1848 and 1849... 7.52— 19.47— average $6.49-100. 
Average rate of Exchange on London in Mobile for 

1846 and 1847... 5.09 

1847 and 1848... 5.92 

1848 and 1849... 6.89— 17.90— average $5.97-100. 
Average rate of Exchange on Paris in New Orleans for 

1846 and 1847... 5.42 

1847 and 1848... 5.34 

2848 and 1849... 5.28— 16.05— average for three years $5.35. 
Average rate of Exchange on Paris in Mobile for 

1846 and 1847... 5.45 

1847 and 1848... 5.43 

1848 and 1849... 5.34— 16,22— average $5.54. 

And as to freight, we will take a ship of 800 tons and compare the expenses of 
the two ports. The ship to New Orleans pays $468 towage from the mouth to 
the city, $190 Wee dues, and if removel from the municipality at which she first 
moors, $3 a day more. Suppose her cargo to be 2500 bales of compressed cot- 
ton — her compressing at 50 cents per bale is $1250 — average drayage, 15 cents 
per bale, $375 — extra labor in getting aboard 5 cents per bale, $125— stevedore 
charges, 35 cents per bale, $875 — towage from the city to the bar $265— do. from 
bar to sea, $95— total $3643. 

The same ship arrives in Mobile Bay, and pays the same rates for compress- 
ing. $1250— drayage 10 cents, $250— wharfage 8 cents, $200— lighterage 20 cts., 
$500— stevedore charges 25 cents, $625— total, $2825. This shows a nett profit 
of $818 for the vessels and shippers in favor of loading the ship at Mobile. 



20 



Considering all the advantages which Mobile possesses from na- 
tural causes, if there is not energy or skill enough among her mer- 
chants to make it the interest of her own neighborhood to trade with 
her, then she ought to sink to the lowest point of degradation, un- 
deserving even the sympathy of her friends. 

I cannot close these remarks without noticing the extraordinary 
j:>osition taken in reference to the delegation from Mobile. The}'' 
are urged to take no part in the decision which is to select the 
route ; they are asked to form no opinion, and if they do to express 
none; and in the ardor of debate they have been cautioned not to 
excite the ire of certain contending localities. The reason given 
for this extraordinary appeal is, that whether the road terminates at 
Wetumpka, Montgomery, or Selma, the city of Mobile would 
equally become the recipient of its trade and travel. 

On behalf of that delegation, I must be permitted to say, that 
no feelings of a local character influence their action here. They 
came to this convention under the most liberal instructions. In 
legal parlance, they were left " to do in the premises whatever 
(their constituents) might lawfully do were they personally pre- 
sent," and in making a choice between the various routes pro- 
posed, they have no motive of an improper character to sway their 
judgments. Indeed, I might truly add, that were they to be gov- 
erned by mere local considerations, the strongest, social and 
commercial ties would incline them to Montgomery. When Sel- 
ma contended with her for the high honor she now enjoys, the vote 
of Mobile and the adjacent counties contributed to crown her as 
the capital of the State. There upon her loftiest eminence stands 
that magnificent temple, reared by the unaided efforts of her own 
citizens, at once a monument of their munificence, and an honor to 
the State, and there may it stand forever. The past affords none 
but the most kindly relations ; and I see nothing in the future to 
mar this harmony. 

But neither this appeal or these considerations, or any threat- 
ened consequences, can or ought to deter the representatives of 
Mobile from taking their share of responsibility in determining the 
great measure before us. 

What though the interests of Mobile are to be equally subserved 
let the road go where it will? Are her representatives to have no 
regard to the rights of others 1 Is the good of the State to be ex- 
cluded from consideration ? And while all others are professing 
regard for the general welfare, is the Mobile delegation alone to 
occupy the selfish position of representing a mere local interest % 
For myself I can never consent to sink the duties I owe to the 
State into the narrower obligations due to the city. And knowing 
as I do the high character-of the gentlemen who have urged these 
views, I am satisfied their " sober second thought" will confirm 
the propriety of this determination. 

When, then, this convention shall announce its judgment, let us 
hope for a unanimous acquiescence : and when it adjourns letit be 
in that spin! ivhieh shows its faith in zcorhs. 



SPEECH 



OF 

HON. P. PHILLIPS, OF ALABAMA, 

ON 

THE TERRITORIAL BILL. 



Delivered in the House of Representatives, April 24, 1854. 



Mr. PHILLIPS rose and said : 

Mr. Chairman : We are now called upon, in the exercise of our legislative 
functions, *to discharge the high duty of organizing a government for a vast extent 
of territory, the seat of future States and empires. Many of us would willingly 
postpone, if it were practicable, this important duty ; but we are admonished by 
events rapidly transpiring around us, as well as by the vote of the last session, that 
this is a foregone c.onclusion. ' Let us, therefore, boldly proceed to mini our obliga- 
tion, and prepare for the accommodation and protection of that swelling and re- 
sistless tide of population which has been forcibly described by De Tocqueville as 
" the progress of a deluge of men, driven forward by the hand of God." 

The bill which is now before us, for the government of Nebraska and Kansas, 
is violently assailed by many who admit the correctness of the great principle upon 
which it is founded, and yet oppose it as a repeal of the act of 1820. Now, sir, 
if that act has no claim to our consideration beyond its intrinsic merits, it would 
be very illogical to say that the wrong of our predecessors should be a bar to 
rightful action on our part. 

But it is solemnly urged, that the act is something more than one of ordinary 
legislation ; that, in truth, it is the evidence of a compact or compromise, entered 
into at that period between the two great sections of the confederacy, intended to 
be perpetual in its obligation ; and though not legally binding, would involve in 
its non-observance a breach of faith. 

It is, then, of the greatest importance to ascertain the truth of this allegation ; 
for whatever may be the merit of the measure before us, it could not receive the 
support of honorable men if productive of such consequences. For this purpose, 
sir, I have examined, with much care, the journals of the two houses of Congress 
for the sessions of 1820 and 1821. Here, sir, they are. The truth of the propo- 
sition is to be tried, not by heresay, not by the uncertain memory, but by these 
solemn records, faithful chroniclers of the past, and unerring guides of the future. 

In this investigation I do not mean to rely upon any technical argument as to 
the legal requisites of a compact, but intend to pursue the examination in the 
most liberal spirit ; for, sir, I say in advance, and say it boldly, that so far from 

TOWERS, PRINTERS. 



2 



these journals showing that a compact or agreement, such as is now asserted, was 
entered into by the representatives of the several non-slaveholding States with the 
representatives of the several slaveholding States, there is not a page in them, 
referring to the subject, that does not absolutely disprove the assertion. 

It is well known, sir, that the Congress of 1820 assembled under considerable 
excitement in reference to the admission of Missouri into the Union. Primary 
assemblies of the northern people and legislative instructions had been resorted to 
tor the purpose of preparing their representatives for the sternest resistance on this 
subject. I will not fatigue the ear of the House by recounting the proceedings 
which evinced the repeatedly expressed determination of a majority in this body 
against the admission of Missouri without a constitutional provision prohibiting 
slavery or involuntary servitude. It is sufficient for the argument to say, that a 
disagreement between the two houses led to a committee of conference, and that, 
on the 2d of March, Mr. Holmes, from the managers appointed on the part of the 
House, recommended that the two houses agree to strike out of the House bill the 
clause which imposed the restriction on Missouri, and to add to it a restriction 
upon the remainder of the territory north of 36 deg. 30 min., and west of the pro- 
posed State. 

Upon the question of concurring in the first proposition, the vote was 90 to 87 ; 
and upon the second, 134 to 42; and the title being*amended, the bill was passed. 
By an analysis of the first vote, it will be found that not one representative from 
the States of New Hampshire, Vermont, New Jersey, Ohio, Indiana, and Illinois, 
voted in the affirmative, and that Massachusetts, Connecticut, Rhode Island, New 
York, and Pennsylvania, cast, in all, but fourteen votes in its favor ! 

Now, I repeat, I do not deal with this question according to any technical rule. 
You may call the transaction by what name you please — compact, contract, com- 
promise, or agreement — they all and each necessarily involve the idea of mutual 
obligation, and no obligation can exist without the assent of the parties to be bound. 

By what process of reasoning, therefore, can we arrive at the conclusion that 
the six States first named, whose representatives unanimously voted against the 
measure, assented to it, or that the other five were obligated by the action of so 
inconsiderable a fraction of their representation ? 

It seems to me that I would but insult the understanding of intelligent men to 
argue this proposition further. Sir, as the non J slaveholding States refused their 
concurrence, and by their votes sought to defeat the measure, they were not re- 
sponsible for it, they w T ere not morally bound by it, and could, therefore, never 
claim it as the basis or consideration of any compact or agreement whatever. 

But it may be said, that if the non-slaveholding States did not vote for the act, 
yet they approved of it after its passage, and thus nave entitled themselves, through 
the vote of their fourteen representatives, to consider the act as though they had 
originally assented to it. This conclusion would be incorrect if the premises were 
true; but the premises are false. The passage of the act was followed by increased 
excitement at the North, and the gallant band of northern representatives, who 7 
truer to the Constitution than to the prejudices of their constituents, had voted 
for the proposition, were subjected to the same popular insult3 and indignities now 
so freely bestowed upon the northern supporters of the bill before us. 

The subsequent session of Congress affords the fullest and most conclusive evi- 
dence that the idea of the act of 1820 being a compact or agreement, was nofc 
then entertained. On the 16th of November, Mr. Scott presented to the House 
the constitution of Missouri, formed on the 19th of July, 1820, by the convention 
held at St. Louis, under the act of March, 1820, which was referred to a com- 
mittee consisting of Lowndes, Sargent, and Smith of Maryland, who, on the 23d 
of November, reported a "joint resolution declaring the admission of the State 



of Missouri into the Union." Tin's was rejected by a vote of — yeas *79, nays 93 : 
the whole non-slaveholding representation voting in the negative. 

Now, if the act of 1820 constituted a compact or agreement, and Missouri had 
complied with the terms and requisitions of that act, her admission was not a 
matter of discretion, hut of right ; and yet the whole body of northern represen- 
tatives rejected her application. 

It is attempted to answer this argument hy placing- the opposition on that clause 
of the constitution of the State which excluded free negroes from her borers. 
But this does not remove the difficulty, for if" the act of 1820 was a QOmpaCT or 
agreement, we look to its terms alone, to ascertain the rights of the parties, and 
the majority could not legally insist upon another and new condition. 

But this attempted answer, poor and flimsy as it is, is disproved by the facts in 
the record. On the 19th of December, Mr. Eustis, of Massachusetts, proposed a 

resolution declaring "That on the day of next ensuing, the State of 

Missouri shall be admitted into the Union, upon an equal footing with the original 
States, in all respects whatever, provided that so much of the twenty-sixth section, 
third article, in the constitution of said State, as makes it the duty of the legisla- 
ture to pass such laws as shall be necessaiy to prevent free negroes and mulattoes 
from coming to, or settling in this State, under any pretext whatever, shall, on or 
before that day, be expunged therefrom." This was rejected by a vote of 146 
to 6! 

Again, sir, on the 10th February, Mr. Clay, from the select committee to which 
had been referred the resolution from the Senate providing for the admission, re- 
ported the same back with the amendment requiring a u fundamental condition 
that the said State shall never pass any law preventing any description of persons 
from settling in said State who now are, or hereafter may become, citizens of any 
of the States of this Union." This was again rejected by the North, the vote 
being — nays 87, yeas 81. 

These facts necessarily lead to the conclusion that the opposition of the North 
was to be sought for in other considerations. As to what these were we are not 
left in doubt ; for we find that before the vote was taken on the resolution, Mr. 
Mallary, of Vermont, moved to amend by striking out Mr. Clay's amendment, and 
inserting the following: 

"Whenever the people of said State, hy a convention appointed according to the man- 
ner provided for by the act, (to authorize the people of Missouri to form a constitution and 
State government, and for the admission of such State into the Union on an equal footing 
with the original States, and to prohibit slavery in certain territories, approved March 0, 
1820,) adopt a constitution conformably to the provisions of the said act, and shall, in ad- 
dition to said provisions, f urther provide in and by said constihdion, that neither slaver}/ nor 
involuntary servitude shall ever be allowed in said State of Missouri, unless inflicted as a 
punishment for crimes committed against the laws of said State, whereof the party accused 
shall be dn'y convicted: Provided, That the civil condition of those persons who are now 
held to service in Missouri shall not be affected by the last provision." 

For this amendment, which, expressly ignores and repudiates the whole act of 
1820, except the eighth section, and which is utterly at war with the pretence that 
that that act was a compact, agreement, or compromise, two-thirds of the northern 
representatives cast their votes ! In what a position do northern gentlemen, who 
now denounce the bill before us so bitterly as a violation of " plighted faith," place 
their States ! Sir, in behalf of that great section of the confederacy, I reject their 
efforts' here as calumnies. However strongly I may condemn the action of the 
majority of the Congress of 1820 in thus reopening the whole slavery question 
with Missouri, and carrying the discussions back to the very point of departure, I 
will not so stain their honor as to suppose that they acknowledged the existence 
of any compact, agreement, or compromise, such as is now insisted upon. 



4 



But, action contravening, the law of 1820 was not confined to one section, 
On the 21st February, Mr. Brown, of Kentucky, introduced a proposition in- 
structing the Committee on the Judiciary "to. inquire into the expediency of re- 
pealing the eighth section of the act of 1820, the said eighth section imposing 
a prohibition and restriction upon the introduction of slaves in all that territory 
ceded by France to the United States, under the .name of Louisiana, which lies 
north of 36 deg. 30 min., not included in the State contemplated by that act." 

Mow, sir, let us pause for a moment on the striking facts, that twelve months 
after the passage of the act of 1820, by which, it is said r the admission of Mis- 
souri was solmenly guarantied, the resolution of Mr. Lowndes for her admission 
was rejected ; that her admission could not be effected even through the new 
terms contained in the several resolutions of Mr. Eustis and Mr. Clay ; that the 
proposition of Mr. Mallary, requiring " that neither slavery nor involuntary ser- 
vitude shall ever be allowed in said State of Missouri," was sustained by two- 
thirds of the votes of the northern representatives ; and that, finally, a direct 
proposition was offered by Mr. Brown to repeal the eighth section, the attempt 
to do which, by this bill, is now so violently denounced. 

Congress had now seemingly exhausted itself upon this subject. The session, 
within a very few days, would reach the period of its adjournment. Missouri, 
though refused a place in the Union, was an organized State. In or out of the 
Union, there she stood, panoplied in her sovereignty. A dissolution of the ex- 
isting Union, and the formation of another, of which Missouri would be the 
nucleus, was a danger not too remote to fill the mind of the patriot with appre- 
hension. It was under these circumstances that Mr. Clay, on the 2 2d February, 
a day well selected for its patriotic associations, presented to the House a resolu- 
tion — 

"Tli at a committee be appointed on the part of the House, jointly with such committee 
as may be appointed on the part of the«Senate, to consider ,and report to the Senate and 
House, respectively, whether it be expedient or not to make provision for the admission of 
Missouri into the Union on the same footing as the original States, and for the due execu- 
tion of the laws of the United States within Missouri; and if not, whether any other, and 
what prevision, adapted to her actual condition, ought to be made by laiv," 

If there were no evidence to disprove the existence of a compact or agreement 
but this resolution, it would be wholly conclusive. Sir, the silence of the reso- 
lution upon this subject is more expressive than a volume of words would be. 
When the veiy existence of the Union itself would be jeoparded by non-action 
on the part of Congress, think you Mr. Clay would not have based his motion 
upon the existence of such a compact or agreement, instead of limiting himself 
to a mere resolution of inquiry ? 

This final effort for an adjustment was considered so important, that, under 
the resolution, a committee of twenty-three were elected by ballot. On the 26th 
February, five days before the adjournment, the committee, through Mr. Clay, 
reported the joint resolution for the admission of Missouri which is now on the 
statute-book, and which, in the proposal and acceptance of conditions, may be 
termed a compact or agreement. This is the compromise on which Missouri came 
into the Union. It was the last effort that could be made to quiet agitation, to 
harmonize the action of Congress, to insure the safety of the Union itself ; and 
yet, under this urgency, in the face of the most menacing dangers, but seventeen 
votes from the non-slaveholding States could be obtained in favor of the measure — 
the resolution being adopted by a vote of 87 to 81. 

I have thus, Mr. Chairman, faithfully narrated these transactions as I find them 
here recorded. They need no argument ; for I have only to put a tongue into 
these pages " and bid them speak for me." With all this plainly written down for 
our instruction, such is the force of error, and prejudice, in obscuring the human 



5 



mind, that we find gentlemen of intelligence and integrity repeatedly insisting 
upon an agreement, against the positive refusal of one of the parties to enter into 
it in 1820, or to recognise it in 1821.* Sir, we cannot receive assertion for evi- 
dence, nor the repetition of falsehood for truth. 

In my desire to avoid fatiguing the- House, I have not, in this summary of 
legislative action, referred to the course .of proceeding in the Senate. It is suffi- 
cient to say, that the evidence of their journals presents a similar state of facts, 
and leads to the same conclusions, I will only, therefore, refer to the important 
resolutions to he found in the journals of the Seriate, presented from the States 
of New York and Vermont in 1821, and which, as they explicitly bear upon the 
argument, and proceed from the highest sources, with the permission of the com- 
mittee I will read. On the 13th November, 1820, the State of New York adopted 
the following: 

" Whereas the legislature of this State, at its last session, did instruct their Senators, and 
request their Representatives in Congress, to oppose the admission, as a State, into the 
Union, of any territory not comprised within the original boundaries of the United States, 
without making the prohibition of slavery therein an indispensable condition of admission ; 
and whereas this legislature is impressed with the correctness of the .sentiments so com- 
municated to our Senators and Representatives: therefore, 

"Resolved, (if the honorable the Senate concur herein,) That this legislature does ap- 
prove of the principles contained in the resolutions of the last session; and, further, if the 
provisions contained in any proposed constitution of a new State deny to any citizens of . 
the existing State the privileges and immunities of citizens of such new States, that such 
proposed constitution should not be- accepted or confirmed; the same, in the opinion of this 
legislature, being void by the Constitution of the United States. And that our Senators be 
instructed, and our Representatives in Congress be requested, to use their utmost exertion 
to prevent the acceptance and confirmation of .any such constitution." 

Two days after this Vermont responded, as follows : 

"That the legislature views with regret and alarm the attempt of the inhabitants of^Iis- 
souri to obtain admission into the Union as one of the United States under a constitution 
which legalizes and secures the introduction and continuance of slavery, and also contains pro- v 
visions to prevent freemen of the United States from emigrating to and settling in Missom*i, 
on account of their origin, color, and features; and that, in. the opinion of this legislature, 
these principles, powers, and restrictions contained in the reputed constitution of Missouri 
are anti-republican, and repugnant to the Constitution of the United States, and subversive 
of the inalienable rights of man." 

Now, sir, with due respect for the gentleman from New York, [Mr. Matteson,] 
and the gentleman from Vermont, [Mr. Meacham,] who have so earnestly debated 
this question, it seems to me, if they would preserve the honor of their States 
free from stain or blemish, they should forever desist from holding up the 
act of 1820 as a sacred agreement, to which the faith of the several States was 
plighted. 

In one of the latest of Mr. Clay's speeches, he had occasion to declare the surprise 
he felt in having been generally regarded as the author of the restriction in the act 
of 1820, when it did not originate in the House of which he was a member ; nor did 
he even remember whether he had voted for it. If, sir,- he had heard this debate, 
his surprise would have been greatly increased by the complete misapprehension 
and misstatement of the entire transaction which have characterized the discus- 
sion. Why, after the statement of Mr. Clay himself, as to his relation to the act 
of 1820, the gentleman from Tennessee, [Mr. Cullom,] who last addressed the 
■committee, drew from a certain quarter of the House quite a burst of merriment 
at the alledged inconsistency of; my friend from Kentucky, [Mr. Bkeckenridge,] 
now absent from this city. 

Now, in what did that inconsistency consist? That in his eulogy on the death 
of Mr. Clay, Mr. B. had said : 



6 



"Who does not know that when history shall relate the struggle which preceded, and 
the dangers which were averted by, the Missouri compromise, the Tanff compromise of 
1S32, and the Adjustment of 1850, the same pages will record the eloquence and the 
patriotism of Henry of Clay ;" 

while, in his late speech, the gentleman from Kentucky had declared that the 
name of Mr. Clay " could not he invoked as the author of the act of 1820." 
Now, with great deference, it appears to me, if there were cause for laughter in 
this statement, it was in the blunder of not recognising the distinction between 
the "Missouri compromise," of which Mr. Clay was the author, and "the act of 
1820," for which he did not remember whether he had even voted. 

I might here, Mr. Chairman, rest the argument on this head ; but there is a 
question connected with it of still higher interest — a question which is not con- 
fined to the true interpretation of a single act of Congress, but relates to the gene- 
ral power of legislation under the Constitution. 

It will be remembered that though Missouri was finally admitted without a- 
condition for the inhibition of slavery, yet that the claim of potver on the part of 
Congress to insist upon one, was sustained. The eighth section of the act asserts 
the power, not only to exclude slavery during the Territorial condition, but through 
all changes of government. The prohibition is not for a limited time, but "for- 
ever." That this is the true interpretation I believe is not questioned. It is 
shown by the words of the act, by the debates, and by the power asserted in ref- 
erence to the same subject-matter in the resolutions for Texas annexation. 

In 1814, the Hartford Convention, fatally bent upon disturbing the harmony 
of the Union, adopted a series of resolutions, in which they boldly proposed, for 
the purpose of checking the growth of the South, that the Federal Constitution 
should be amended, so as to exclude slaves from the principle of representation, 
and to require for the admission of new States a vote of two-thirds of both houses 
of Congress. As the country did not respond to these suggestions, the applica- 
tion of Missouri, a few years afterwards, afforded an opportunity of accomplishing 
the same design by different means. The shape it then assumed was the asser- 
tion of a power in Congress to make the prohibition of slavery a condition prece- 
dent to the admission of future States. Thus a bare majority in Congress, by a 
simple vote, could as effectually arrest the growth of the South, as the amend- 
ments of the constitution submitted by the Hartford Convention. 

I do not propose, Mr. Chairman, to go at large into this question of constitu- 
tional power ; but I cannot refrain from expressing surprise that so many of the 
leading minds of that period were so warped by prejudice as to have seemingly 
overlooked the well-marked fact, that the whole frame-work of the federal consti- 
tution is constructed and adjusted upon principles of absolute equality between 
citizens, and absolute equality between States. 

It is true, sir, that the constitutional provision as to the admission of States is 
not inoperative in its terms : "New States m,ay be admitted by the Congress into 
the Union ;" but the constitution never intended to confer upon Congress the 
power to grant to the new States greater rights and privileges than the old pos- 
sessed, thus producing an inequality in derogation of its provisions; nor, by re- 
stricting the new States to less rights and privileges, produce the same fatal result. 
Congress can neither enlarge nor diminish the powers of the States. It is itself 
the mere creature of the old States, and can never become the creator of the 
new ones. 

This subject was so ably treated by the legislature of Virginia at the time of 
this discussion, that I beg leave to read an extract from a report made to her 
legislature : 

"The constitution does not permit any interference on the part of the general govern- 
ment with the municipal policy of the States, except such as may be produced by laws 



7 



necessary and proper for carrying into execution the powers expressly granted to that gov- 
ernment. All such laws may he enacted by Congress. If a power proposed to he exercised 
be granted by the constitution, a compact with any State For its execution is idle ; if do! 
granted, the demand of such a compaet is a usurpation, There is no pari, of the constitu- 
tion which authorizes a compaet between Congress and a Slate for the surrender of -ove 
reign rights. ITow is such a compact to be enforced? Does tin; Slate forfeit, its sov< reign 
character by an infraction? or is the fedei^al government to compel a performance by 
violence ? 

" 'The powers not delegated to the United States by the constitution, not prohibited by 
it to the States, are reserved to the States respectively, or to the people.' Tin's provision 
in the constitution reserves the same sovereign rights to all the States, and surely applies 
as well to the new as to the old States. It is, therefore, only necessary to show that any 
right belongs to the States respectively, who were originally parties to the compact, and 
it follows that the new States must possess precisely the same rights. The duties, the pow- 
ers, the rights of a State, and of course the political signification of the term as used in 
the constitution, are to be ascertained by reference to that instrument. And it cannot, he, 
pretended that the w T ord is used in a different sense, in the clause which gives to Congress 
the power of admitting new members into the Confederacy, from that in which it is used 
when applied to the original parties. As the same sovereign right belongs to all the St ates, 
and the existence of the State governments depends upon the preservation of those rights, 
an attack upon the sovereignty- of one must be considered an attack upon the sovereignty 
of all. 

" The State of Virginia is, therefore, as it regards the subject, united in a common cause 
with the people of the Missouri Territory, and bound to interpose for their defence." 

Enforcing this view, Mr. Clay said, in discussing the " Wilmot Proviso :" 

"That proviso has been the fruitful source of distraction and agitation. If it were 
adopted and applied to any Territory, it would cease to have any obligatory force as soon as 
such Territory were admitted as a State into the U?iion." 

I have sufficiently opened this discussion to show how deeply the question in- 
volved the constitutional powers of this government. This is all I aimed at ; and 
now, sir, I would ask of this House whether the exercise of such a power could be 
made the subject of a legislative compromise ? 

Sir, before entering upon the discharge of our duties, we are solemnly sworn 
to support the Constitution of the United States as the supreme law of the land. 
So, also, are the judges of your courts, who are the final arbiters in all cases 
brought before them involving the true construction of that instrument. Pass 
your compromises by whatever numbers you will, annex conditions as you may, 
you cannot escape in all after-time the application of the great test, is it constitu- 
tional ? There is no legislative solemnity, no congressional power, with which 
you can clothe your act, that can secure its continuance for one moment against 
the scrutiny of the humblest citizen of the Confederacy. 

Mr. Chairman, among the most distinguished of the representatives in Con- 
gress of 1820 was one who had borne a conspicuous part in the framing of our 
Federal constitution. He was full of years and wisdom, but the mellowing hand 
of time had not yet touched him with, the principles of decay. That man was 
Charles Pinckney, of South Carolina. 

Speaking to this very point, Mr. Pinckney, said : 

"I cannot, on any ground, think of agreeing to a compromise on this subject. However 
all may wish to see Missouri admitted, as she ought to be, on equal terms with the other 
States, this is a very unimportant object to her compared with keeping the constitution in- 
violate ; from keeping the hands of Congress from touching this question. On the subject 
of the constitution, no compromise ought ever to be made." 

In 1850, Mr. Tazewell, of Virginia, whose reputation as an accomplished states- 
man is universally recognised, writing on this subject, says : 

"Although I can readily conceive the expediency and propriety of adjusting questions of 
interest by compromises, and in many other modes, I freely acknowledge that I have never 
yet been able to comprehend how questions of constitutional right could properly ho so 



s 



treated, especially by those endowed with fiduciary powers only. It is supposed that the 
result of a compromise of constitutional principles becomes equipollent with the provisions 
of the constitution itself : then the compromise is in truth an amendment of the constitu- 
tion — an amendment of this instrument, too, by those to whom it has positively denied the 
power of making any amendment whatever. And if the compromise has not such an effect, 
but is regarded as a mere legislative act, which, like all other such acts, is repealable at the 
will of the majority, then the compromise becomes a temporary expedient to postpone the 
troublesome subject until the majority, by means of this very compromise, shall acquire 
sufficient strength to enforce some other, and, to them, a better bargain." 

It was upon the subject of the tariff compromise that Mr. Webster used this 
language : 

"My constituents might forgive me for sacrificing their interests, but never for violating 
the constitution." 

Mr. Chairman, the wisdom of these teachings is too manifest to require any aid 
from further discussion. Let us, sir, meet the important and agitating question 
involved in the objection to the bills before us, on our own responsibility as legis- 
lators. Let us not shrink from a bold and fearless discharge of the duties im- 
posed upon us by a generous constituency, and fly to shelter behind the acts of 
those who preceded us thirty-odd years ago ! Let us, beyond all things, avoid a 
resort to any temporary expedient, but plant our measures upon the broad foun- 
dation of the constitution. Then, sir, our action will stand the test of time, and 
be as durable as the base on which it rests. Borrowing the language of the 
great Carolinian, " I see my way in the constitution ; I cannot in a compromise. 
A compromise is but an act of Congress : it may be overruled at any time ; it 
gives us no security. But the constitution is stable — it is a rock. On it we can 
stand, and on it we can meet our friends from the non-slaveholding States. It is 
a firm and stable ground, on which we can better stand in opposition to fanati- 
cism than on the shifting sands of compromise. Let us be done with compromises. 
Let us go back and stand upon the constitution !" 

Having thus, as I believe, disembarrassed the measure of the encumbrance of 
past legislation, I turn to the objection that the Senate bill is not entitled to the 
favor of southern men, because, while professing the principle of non-intervention, 
it in fact contains direct intervention against the rights of the South. This diffi- 
culty was first suggested by the distinguished senator from Delaware, [Mr. Clay- 
ton,] during the recent debate in the Senate, and has been followed up in this 
House by the elaborate argument of the gentleman from Virginia, [Mr. Millson,] 
sustained by the gentleman from Maryland [Mr. Franklin.] It was also one of 
the chief reasons urged by the, gentleman from New YorS [Mr. Cutting] for re- 
ferring the Senate bill to the " Committee of the Whole." 

To understand with precision the character and force of this objection, let us 
turn to the provisions of the bill itself: 

"That the constitution, and all laws of the United States, which are not locally inappli- 
cable, shall have the same force and effect within the said Territory of Xebraska a3 else- 
where in the United States, except the eight section of the act preparatory to the admis- 
sion of Missouri into the Union, approved March 6th, 1820, which being inconsistent with 
the principle of non-intervention by Congress with slavery in the States and Territories, 
as recognised by the legislation of 1850, commonly called the ' Compromise measures,' is 
hereby declared to be inoperative and void; it being the true intent and meaning of this 
act not to legislate slavery into any Territory or State, or to exclude it therefrom, but to 
leave the people thereof perfectly free to form and regulate their domestic institutions in 
their own wav, subject only to the constitution of the United States : Provided, That noth- 
ing contained" in this act shall be construed to revive or put in force any law or regulation 
which may have existed prior to the act of March 6, 1820, either protecting, establishing, 
prohibiting, or abolishing slavery." 

It is this last proviso which it is said contains Congressional intervention, and 
renders the bill unworthy the support of southern representatives. 



9 



The province of Louisiana was acquired in 1803. The treaty does not profess 
to give its northern or western boundaries. "When the French enjoyed the un- 
disturbed possession of Louisiana, (says Martin,) its extent, in their opinion, had 
scarcely any bounds to the northwest, and its limits were ill-defined anywhere 
except on the seacoast/' But, for the purpose of avoiding any minor dispute, we 
will assume that the territory now the subject of our legislation was held by 
France as a part of the province, and passed to us as such under the provisions of 
the treaty. 

In 1804 the Territory of Orleans was organized, and the remainder of the prov- 
ince, designated as Louisiana, was placed under the. government of the Indiana 
Territory. In 1812 a separate government was established for this portion, under 
the name of the Missouri Territory. In 1819, all that part of the Missouri Terri- 
tory "which lies south of a line beginning on the Mississippi river at 36° north 
latitude, running thence west to the river St. Francois, thence up the same to 36° 
30' north latitude, and thence west to the western territorial boundary line," was 
organized into a. separate Territorial government called the "Arkansas Territory." 
Out of the remaining territory, the whole of which lay to the north of 36° 30', 
was carved the State of Missouri, the particular boundaries of which were deter- 
mined by the act of 1820. 

When the State government of Missouri was formed, it absorbed the whole 
political organization of the Territory of that name, and left the country north of 
36° 30', and west of the State limit, without any organization whatever. The 
actual condition of this territory at this period is particularly described in the let- 
ter of Charles Pinckney, so frequently quoted in this debate. He says : 

"To the north of 36° 30' there is to be, by the present law, restriction, which you will 
see, by the votes, I voted against. But it is at present of no moment. It is a vast trac 
inhabited only by savages and wild beasts, in which not a foot of the Indian claim to soil is 
extinguished, and in which, according to the ideas prevalent, no hand office will be open for 
a great length of time." 

From that period to this, this territory has remained unchanged. The tribes 
which occupied the country from the earliest periods of history still maintain un- 
disputed possession and sway. Other tribes from the east of the Mississippi have 
removed into the territory. It is emphatically the Indian country. The policy of 
our laws has excluded all ordinary intercourse between our citizens and them. Xo 
trade or barter of any kind is permitted but on special license. So far from ex- 
tending our laws and jurisdiction over them, their right has heretofore been con- 
sidered so exclusive that, in 1825, Congress, desiring to lay out a road from west 
of the State of Missouri towards Santa Fe, required as a condition precedent " that 
the commissioners should first obtain the consent of the intervening tribes of 
Indians by treaty ;" and the government, while holding the ultimate fee, has never 
sought to disturb the possessory right. 

Being thus clearly outside of any State or Territorial jurisdiction, it becomes a 
very grave inquiry whether any laws can be said to exist in their territory, except 
such as pertain to their several tribes. If a citizen of Massachusetts, with his 
family, had penetrated into these remote regions and there died, by what law 
would property have been distributed ? Would the claim of the wife have been 
sustained by the civil law rule of matrimonial partnership, or would the children 
have inherited according to the common law rifle of distribution? Sir, it seems to 
me the parties would have obtained but feeble aid, whether they had appealed to 
the liberality of Justinian, or the stern inflexibility of Coke. The lights of per- 
sons who enter into territories in this condition, if any can be said to exist, are 
such as writers denominate "imperfect rights." They are without sanction or 
remedy, and, so far, practically valueless, 



10 



But on so grave a subject as this I will not rest my reply upon a question of 
such nice learning. I will assume the broader and bolder ground, that the civil 
law, including the black code originally given to the province by Louis XV, ex- 
tended by construction to the precise territory in question. 

The laws, then, which existed in the province of Louisiana, so far as they sanc- 
tioned and protected slavery, continued to be the rule of action from the date of 
our acquisition down to the act of 1820. As that act, however, forever prohibited 
slavery and involuntary servitude in that 'Territory, it follows that, assuming the 
act to be constitutional, slavery, and all slavery law, then existing, ceased to be. 
From that time they were nullified, and were to be regarded as if they had never 
existed. 

This principle of law is thus illustrated in the books. If a statute which pun- 
ishes an offence capitally, is repealed by one which punishes the offence as a mis- 
demeanor only, a crime committed during the existence of the first statute cannot 
be punished subsequent to its repeal, because, as already stated, the first statute 
is regarded as if it had never had an existence, and it cannot be punished under 
the second statute, because this would be ex post facto. So, by analogy, debts 
barred and extinguished by limitation or bankrupt laws, never again become the 
foundation of an action, though the debtor subsequently promise to pay them, but' 
the action rests on the new promise. 

The act of 1820, with its prohibition, having thus excluded all other laws on 
this subject, and annexed to the domain a law for its perpetual government, with- 
out regard to any change in its political condition, the measure now before us 
proposes boldly to repeal this law, or, what is equivalent, to declare it "inopera- 
tive and void,'- and to leave the people inhabiting the Territory " perfectly free to 
form and regulate their domestic institutions in their own way, subject only to the 
Constitution of the United States." To a proposition so just, so equal, so consti- 
tutional, there are, to my surprise, dissenting voices from the South ; and we are 
called upon to vote against this measure because the proviso declares : 

"That nothing contained in this act shall be construed to revive or put in force any law 
or regulation which may have existed prior to 6th March, 1820, either protecting, estab- 
lishing, prohibiting, or abolishing slavery." 

The question then presented to us is, shall we reject the proposition which 
leaves southern men free to emigrate with their property into the Territory under 
the sanction and protection of the constitution, because it does not also contain a 
re-enactment of the ancient pro-slavery laws ? 

But I am told by the dissentients that a re-enactment is not required ; and that 
if Congress will merely content itself with simply repealing the eighth section of 
the Missouri act, these laws will revive of themselves. 

Here is the fundamental error. Laws once destroyed have no self-recreative 
power ; and whenever revived, it is only by force of some new creative act. 

The great rule, Mr. Chairman, in the construction of statutes is, that the inten- 
tion of the law-giver is to be deduced from a view of the whole and every part of 
a statute taken and compared together. The real intention, when accurately as- 
certained, will always prevail over the literal sense of the terms. 

Subordinate to this is the special rule of the common law — that on " the repeal 
of a repealing statute (the new law containing nothing in it that manifests the in- 
tention of the legislature that the'former act shall continue repealed) the original 
statute is revived." — (Dwarris on Statutes, p. 534.) 

It is therefore only by virtue of the intention contained in the new act, ascer- 
tained by the court according to the rule already quoted, that the ancient law is 
revived or recreated, and not by force of any vitality existing in the ancient law 
itself. 



• 



Now, as the essential rule of construction, as just read, only permits the court to 
declare a revivor, when there is nothing in the statute which manifests the intention 
of the legislature that the ancient law shall continue repealed, could there be any 
doubt as to the construction of the act without the proviso : " it being the true intent 
and meaning' of this net not to legislate slavery into any Territory or State, or to ex- 
clude it therefrom" — an expression legally as emphatic as if it had declared it was 
the true intent and meaning of the act not to revive the laws respecting slavery 
existing prior to 1820. When, therefore, the Badger proviso declared "that 
nothing contained in this act shall be construed to revive or put in force any law 
or regulation which may have existed prior to the act of 6th March, 1820, either 
protecting, establishing, prohibiting, or abolishing slavery," it was simply tauto- 
logical, and could have been intended only to quiet the apprehension of northern 
gentlemen whose knowledge of the law was not equal to their caution. 

But this only shows the impotence of the proviso, and if the bill without it is 
intervention against the South, the objection would only be removed a step further 
back, and we must, therefore, give a further answer. 

If, sir, the bill had contained no evidence of any intent as to the ancient law, 
and was simply a declaration that the prohibition of the act of 1820 was thereby 
repealed, I deny that any revivor would have taken place ; for this, sir, would not 
be the case of a " repeal of a repealing statute," but a repeal of a prohibitory 
statute. In the first case, implication of the.intent to revive is resistless ; in the 
latter case, no such intention necessarily arises. Why, sir, we have the fact now 7 
demonstrated on this floor, that while a large number of representatives are willing 
to repeal the prohibition, few of them, if any, would vote to re-enact the old laws. 

It is true, the Missouri prohibition operated as a repeal upon all the laws then 
existing for the protection of slavery, but it did more ; it created a perpetual bar- 
rier against similar legislation in the future. It therefore would not follow that a 
repeal of this perpetual prohibition necessarily showed the intention to revive laws 
w T hich existed at the time of the prohibition, and were destroyed by its influence. 

While the construction of statutes at the common law is such as I have stated, 
the civil law declares that "the repeal of a repealing statute shall not revive the 
former law." 

I will not stop to inquire whether, as it is contended that the civil law of Lou- 
isiana now exists in these Territories, and the act of 1820, as well as the act now 
proposed, are Territorial acts in their operation, the construction of the courts 
would not be governed by the civil law rule. It is evident that if the same acts 
had been passed by a Territorial legislature, in a country where the civil law pre- 
vailed, it would be so. These considerations I waive, because a great measure of 
legislation should stand upon broader and surer grounds. 

The rules of the common and civil law vary much less than they appear to do. 
By the former, the court will give effect to the intention to revive without express 
words; by the latter, the legislature must revive the old laws by a formal re- 
enactment. 

By either rule, however, the revivor is created by the act of legislation, and the 
effect and responsibility are precisely the same, whether it flows from necessary 
implication or expression. 

The objection, therefore, to the bill, with or without the Badger proviso, -can 
only amount to this — that the South should not assent to the passage of the measure 
repealing the perpetual prohibition, and leaving the people inhabiting the Terri- 
tories to pass such laws as they may, under the constitution, deem best, without 
our northern friends will also agree to re-enact the black code of Louis XV, and 
all other pro-slavery laws which are supposed to have existed prior to 1820. 

Sir, the South should have made her stand in 1820, .when these laws, then in 



19 



fall force, as is contended, were repealed. If the South submitted to it then, can 
we now demand of northern men to re-establish them ? For one I will not, on 
such ground as this, reject the proposition tendered by brave and patriotic repre- 
sentatives of the North in the'bill before us. If we do not thereby regain all the 
ground we lost in 1820, we shall at least obliterate that hateful sectional line which, 
for thirty-four years, has festered in the wounded side of the constitution. 

It is to this miserable line, containing as it does a Congressional imputation 
against the institutions of one-half of the States, that we owe much of the aboli- 
tion agitation in and out of these halls. How strongly was this described by Mr. 
Jefferson a few months after the passage of the act : 

"But this momentous question, like a fire-bell in the night, awakened and filled me with 
terror. I considered it at once as the knell of the Union. It is hushed, indeed, for the 
moment; but this is a reprieve only, not a final -.sentence. A geographical line, coinciding 
with a marked principle, moral and political, once conceived and held up to the angry passions 
of men, will never be obliterated; and every new irritation will mark it deeper and deeper." 

Let us, then, representatives, casting from us all minor objections, firmly unite 
for the eradication of this "'geographical line,", so fatal to the harmony of the 
Union, and so hostile to the spirit of our institutions. 

Another objection, Mr. Chairman, that has been urged against the bill by gen- 
tlemen from the South, is, that'it recognises what'is termed " squatter sovereignty :" 
the provision being, that " the true intent and meaning of this act is not to legis- 
late slavery into any Territory or State, or to exclude it therefrcm, but to leave 
the people thereof free to form and regulate their domestic institutions in their 
own way, subject only to the constitution of the United States. 

Now. it is admitted that a difference of opinion exists between the different 
sections of the eogofederaey, as to the period when the right of the people of the 
Territory to act upon the subject of the admission or exclusion of slavery arises. 
On the one hand, it is said that this right exists as soon as the Territorial organi- 
zation takes place ; on the other, it is maintained that it is in abeyance until the 
people proceed to establish a State government. 

Now, sir, the South has contended that, under the constitution, Congress could 
not prohibit the introduction of citizens of the States with their slave property 
into the Territories. If so, Congress cannot confer a power which it does not 
itself possess ; and the same constitutional restriction would restrain the Territo- 
rial legislature. 

Wherever our territory extends, our constitution follows and controls it. A 
denial of this involves the difficulty into which Mr. Webster fell, in the celebrated 
colloquy with Mr. Calhoun, in the Senate, in February, 1849 ; for while he de- 
nied that the constitution extended over the Territories proprio vigor e, he con- 
tended that the power to govern the Territories " was granted in the constitution 
in so many words." 

But, whatever may be the merit %i that controversy is not necessary to deter- 
mine, as the bill before us carries the constitution expressly into the Territories 
by leaving u the people thereof perfectly free to form and regulate their domestic 
institutions in their own -way, subject only to the constitution of the United 
States^ 

Under those provisions of the constitution conferring the war and treaty- 
making power, I believe that territory may be acquired. The right to govern it 
is an incident provided for in the clause authorizing " all laws necessary and pro- 
per for carrying into execution the foregoing powers, and all other powers vested 
by this constitution in the government of the United States, or in any depart- 
ment or officer thereof." 

When the Territory of Louisiana was purchased, the proprietary interest in 



13 



the soil vested in the people of the several States, who are the parties to the 
federal compact. The sovereignty over the soil vested in the same hands. This 
is as evident as if the occurrence had taken place under the articles of confede- 
ration. 

The legal right to " dispose " of the soil, and to govern the Territory, are vested 
in Congress. The right is exclusive, but not absolute or unlimited. Congress 
being the agent or trustee for the common good and benefit of the people of the 
several States, can pass no act, either in the disposition of the soil or in the gov- 
ernment of the Territory, inconsistent with the rights of the beneficiaries in the 
trusts, for it is a principle of the law of nations " that all the members of a 
community have an equal right to the use of the common property ;" and this 
principle is no less strongly secured in the constitution of our Union. 

The bill refers the question of legislation on the subject of slavery to the people 
of the Territories. One side maintains that such legislation would not be au- 
thorized until the formation of a State government ; the other, that it would be 
as soon as the Territorial goverment is organized. But whether the one or the 
other be correct, depends upon the constitution. The bill expressly (though un- 
necessarily) declares that their legislation shall be " subject to the constitution of 
the United Stages." And the difference thus existing as to the appropriate period 
of legislating on this subject is left to be decided by the judicial tribunals of the 
country, according to constitutional right, and the support of the bill involves no 
compromise or consession by either side. 

But, Mr. Chairman, it is not from southern objectors that the friends of this 
measure have any serious apprehensions ; for, probably, in the history of the 
government, the South was never so firmly united as she is at present ; but it is 
from that compact, active, and restless party, which loses no occasion of political 
excitement to rouse up the sectional prejudices and jealousies of the country. 

Sir, the question of slavery, with its attendant difficulties, existed before our 
day. It was maturely considered and acted Upon by those gifted and patriotic men 
who deliberated together in the convention which framed our constitution ; and 
the results of their deliberation are to be found in its provisions. 

The prejudice against this institution, which existed then, did not prevent them 
from entering into the Union. And if they found it necessary to sacrifice this 
prejudice to consummate the Union, let it never be forgotten by their descendants 
that the same sacrifice is necessary to preserve it. 

It has been urged, as an objection to the bill, that free labor* will not 
flow so freely into Territories where slave labor exists. It is evident, sir, that 
there are natural laws which regulate this question, which must forever secure 
the larger portion of the Territories to what ns termed free labor. "What, 
then, sir, if a portion of them is subjected to southern institutions ? Will any 
injury result to the non-slaveholding States ? Will the Union be thus rendered 
less secure ? It is said the States thus occupied will be less populous and 
less powerful — that they will increase less rapidly in all the elements of ma- 
terial wealth. Let it not be forgotten, Mr. Chairman, that the intelligence, com- 
fort, and happiness of a people, are the first and highest objects of political gov- 
ernment ; and let me say to gentlemen, if the slaveholding States do not equal 
those which are non-slaveholding in the extent of their population and in the ag- 
gregate of their wealth, they are fully their equal in every social, moral, or religious 
point of view ; and that they not only contribute a full share to the commercial 
prosperity of the Union, but more than their share in the preservation of the 
constitution, on which the continuance of that Ulion depends. 

Sir, there is a conservatism in the southern States, not springing from any su - 
periority of their citizens over others, but arising out of the character of their in 



l 



14 



stitutious, * which has been, is, and will be, of tlie greatest moment in the admin- 
istration of our government, 

I know it is the- boast of patriotism that our experiment of self-government, 
wliicli rests upon the good will of the people, and eschews the necessity for force, 
has been fully realized. But what, sir, is sixty or seveuty years in the life of a 
nation ? I have, sir, great confidence in the present ; I have an almost boundless 
hope in the future ; but I cannot shut my eyes to the fact, that those causes 
which have tested the strength of other governments, and produced their over- 
throw, have as yet had no opportunity to work out their effects here. 

When population shall become so centralized and condensed in our country as 
to press upon the means of subsistence, and the vices and crimes which are at- 
tendant upon this condition begin to produce their legitimate effects, the spirit of 
conservatism which must forever remain the characteristic element of the slave- 
holding States, may be needed to curb the licentiousness of "a fierce Democracy," 
and to preserve those constitutional restraints and limitations which are presented 
in the constitution as a perpetual barrier to the force of numerical majorities. 

But, sir, whether valuable or valueless, the institution of slavery exists ; it is 
incorporated into fifteen States of this Union ; indissolubly associated with all 
their interests, and firmly intertwined with the social relations of their citizens. 
There is no power in this government, there is no power on earth, which can sever 
this tie, and change the present relation of the two races, without one of these 
terrible convulsions in which government and society find a common grave ? 

Sir, gentlemen whose prejudices are so controlling upon this question of invol- 
untary servitude, might find some abatement of feeling in the reflection that ser- 
vitude of some kind is the lot of man. How far servitude is ever voluntary, 
might lead to a question of metaphysics not proper for this occasion. But I was 
much struck with the pointed manner in which a late European writer has stated 
the proposition. He says : 

"In the contract between capital and labor, the laborer is not free. There is no mutu- 
ality of freedom between the man who wants a laborer that his mill may not be idle, and 
the man who wants an employer that his children may not starve. The mill may be idle 
with a loss of protit which its owner may very well afford. The hands of the laborer can- 
not stop their work except at the penalty of starvation. Between parties so circumstanced, 
there is no freedom of contract. The person giving employment is the tyrant; the party 
begging for it is the slave." 

Again^ it is urged that the " slave power is aggressive." Sir, this is not true. 
There is no page of our past history which does not falsify the assertion. There 
never has been the time when that traduced "slave power" has not stood ready 
and willing to make any sacrifice for the protection of the country or the preser- 
vation of the constitution, nor has there ever been a time when it sought from 
the hands of this government any exclusive right or privilege. 

Sir, the South seeks no disturbance of the harmony of this Union. Her feel- 
ings and her policy are both adverse to agitation. She wants peace, but an hon- 
orable peaee. She claims no advantage, but insists on equality. She is ever 
willing and ready to acknowledge the rights of others ; but she demands respect 
for her own. More 'than this she does not ask; less than this she will never take. 

The bill before us grants no favor to any section of the Union. It is founded 
upon the great principle of self-government consecrated by our Revolution, and is 
in harmony with the constitution. No one has the right to triumph ; no one has 
cause to complain. I believe, Mr. Chairman, that, despite all the agitation and 
violence which have been directed against this measure, its progress will be 
onward to a successful triumph. It has passed the Senate by an overwhelming 
majority, and, from every indication, it will pass this House. Then, sir, there 
will remain to the Executive the high privilege of affixing the seal of his appro- 



15 



bation to this great measure of peace and constitutional equality — a measure 
which it is well known to several Senators and Representatives, as well as to my- 
self, received his cordial concurrence and support in its very inception. 

Sir, our present chief Magistrate mainly owes his exalted position to his entire 
freedom' from all mere sctional interests and sectional prejudices. His course in 
reference to this bill will proudly vindicate the confidence which the American 
people have reposed in him, and render his administration memorable in our 
country's annals. 

Mr. Chairman, the author of this bill has been assailed with unsparing abuse. 
He has been denounced by name for introducing into the body of which he is 
a member the measure which is now before us ; and parliamentary rules have con- 
stituted no barrier against the fierce invective of his assailants. 

Sir, when that honorable Senator, on a very recent occasion, lifted up his hands 
in the Senate chamber to vindicate the constitutional equality of the States, and 
the equal rights of the people, on his one side were arrayed the true-hearted 
democracy of the North, ever faithful to the constitution ; and on the other, the 
firm and solid phalanx of the South. And yet, sir, all these men, able, trusted, 
honored as they are by the States which they represent, all fall under the same 
ban of denunciation ; for if it be dishonorable or treasonable to propose the meas- 
ure, it is equally so to advocate and sustain it. 

Sir, when those who so bitterly denounce this measure shall have passed from 
the scene of action, when their very memories shall have been lost in oblivion, 
there will yet remain in the hearts of the American people a cherished memory 
which fill forever embalm the great principle of the bill before us. 



LETTER 



ON 



NATURALIZATION AND CITIZENSHIP, 

FROM 



HON. PHILIP PHILLIPS, 



OF ALABAMA. 



/ 

DECEMBER 18, 1854. 




WASHINGTON: 
A. O. P. NICHOLSON, PRINTER. 
1854. 



NATURALIZATION AND CITIZENSHIP. 



To the Editor of the Union : 

In compliance with the request made by you a few days ago, I now 
submit for examination the opinions I entertain as to the power of the 
federal and State governments over the subject of citizenship. The 
consideration of this question derives increased interest and importance 
from recent manifestations of the popular feeling, and from the intro- 
duction into the two houses of Congress of measures intended to cor- 
rect the supposed evil. It is alleged that the exercise of the right of 
suffrage by naturalized citizens has been productive of great evil to the 
interests of the country, and the remedy is sought in federal legislation 
acting upon the power of passing uniform naturalization laws. How 
far, then, Congress can by its act control the right of suffrage, is the 
question which lies at the very threshold of the subject. 

It is contended that the power conferred by the constitution to 
"establish a uniform rule of naturalization " is, when exercised by 
Congress, necessarily exclusive of any similar power in the States. 
We may admit this to be true, and still the question remains, Did the 
States, in granting this power to Congress, yield up their right to regu- 
late political suffrage within their own limits ? 

The constitution of the United States contains stipulations in refer- 
ence to the qualification of the functionaries who are to administer the 
federal government. A representative must have been a citizen of 
the United States for seven years; a senator for nine years. The 
President is required to have been a natural-born citizen, or a citizen 
of the United States at the time of the adoption of the constitution, and 
fourteen years a resident within the United States. But while the 
constitution thus exercises its control over the qualifications of the func- 
tionaries, it nowhere undertakes to regulate the qualifications of the 
constituency. Recognising the principle that it was ordained by the 
people of the several States, each acting for itself and by itself, the 
only qualification of electors to be found in its provisions is, that for 
members of the House of Representatives the electors in "each State" 
shall "have the qualifications requisite for electors of the most numer- 
ous branch of the State legislature." 



4 



There is neither an express grant of power to the federal govern- 
ment nor a prohibition to the States in reference to the right of suf- 
frage ; and the clear implication from the clause just quoted is, that it 
was left with the several parties to the compact as a matter of State 
jurisdiction. 

It is supposed that this original jurisdiction of the States has been 
impaired by the 2d section of the 4th article, which provides "that the 
citizens of each State shall be entitled to all privileges and immunities 
of citizens of the several States." But I submit, it never was intended 
by this to consolidate the government by melting down into one common 
mould the rights of citizenship. A citizen of New York does not be- 
come ipso facto a citizen of Alabama, so as to be invested with all the 
political rights of citizenship. It is within the State power to require 
any length of probation, or to discriminate between native-born and 
foreigners, or even wholly to exclude foreigners. And as the States 
are foreign to each other, except in cases under the control of constitu- 
tional stipulations, it may be well to reflect that the day may come 
when the prejudices now sought to be organized for political action 
may lead to laws of exclusion even among the native-born citizens of 
the different portions of the confederacy. 

What, then, are " privileges and immunities " in a constitutional 
sense? We answer, w T ith the court of Maryland, they mean that the 
citizens of all the States shall have the peculiar advantage of acquiring 
and holding real as well as personal property, and that such property 
shall be protected and secured by the laws of the State in the same 
manner as the property of the citizens is protected. They mean that 
such property shall not be subject to any taxes or burdens which the 
property of the citizens is not subject to. They may also mean that 
as creditors they shall be on the same footing with the State creditor in 
the payment of the debts of a deceased debtor. They secure and 
protect personal rights, but they do not confer the right of voting or 
holding office. The contemporary history of the constitution contrib- 
utes very much to enforce the view here taken of these terms. The 
same words are used in the articles of confederation : " The free in- 
habitants of each of the States, &c, shall be entitled to all privileges 
and immunities of free citizens in the several States ; and the people 
of each State shall have free ingress and egress to and from any other 
State, and shall enjoy therein all the privileges of trade and commerce, 
subject to the same duties, impositions, and restrictions as the inhab- 
itants thereof respectively." It would seem to be clear that political 



5 



rights were not intended to be conferred by this clause. The right of 
suffrage being in a representative government the highest right of citi- 
zenship, it is not to be supposed it would have been omitted in the 
specific enumeration to be found in the article from which we have 
quoted, and thus left to mere construction or implication, while minor 
rights were carefully and expressly provided for. It will be seen that 
the "privileges and immunities " are not even by this provision con- 
fined to citizens, but are extended to "inhabitants." This must be 
conclusive, it seems to me, of the construction under the " confedera- 
tion." No intelligent mind could suppose that the States which were 
sovereign and independent ever intended that a mere " inhabitant" of 
one of them should exercise the right of suffrage which belongs only 
to full citizenship in every other State. 

Now, if I am right in this, it is certainly not a strained argument to 
insist that the same words, used in the same connexion, when trans- 
ferred into the constitution, meant the same thing. The force of this 
view is also strengthened by the consideration that this clause in the 
convention which framed the constitution gave rise to no discussion or 
remark, which it certainly would have done if the meaning of these 
terms had not already received a fixed signification. 

That the constitutional use of the word citizen does not necessarily 
include full citizenship, but that the distinction between full and partial, 
or general and special, citizenship is recognised, is seen in that provi- 
sion which confers jurisdiction upon the federal judiciary in controver- 
sies between " citizens of different States." It has uniformly been held 
by statesmen, as well as jurists, that in this connexion the term "citi- 
zen " was intended to signify merely a resident or inhabitant. 

If, however, the question were doubtful, the rules of construction 
would justify us in resorting to the action of the States themselves the 
parties to the compact, as evidencing the true signification of this grant 
of power. I will not refer to mere acts of the State legislatures, 
although they are numerous, but to the constitutions of the States, in 
which the voice of the people is directly declared. By them it will be 
seen that the States have not only acted upon the question of time neces- 
sary as a probation for citizenship, but on the more fundamental ques- 
tion as to the classes of persons entitled to the enjoyment of its privi- 
leges. The constitution of Massachusetts excludes paupers ; Maine, 
Indians not taxed ; Rhode Island, the Narraganset tribe of Indians ; 
Indiana, persons enlisted in the army of the United States. Connecti- 
cut, New Jersey, Pennsylvania, Ohio, Indiana, and Illinois, negroes, 



6 



Indians, and all but " white men." Again : Ohio admits to full citi- 
zenship " inhabitants" who reside in the State one year; Illinois, "in- 
habitants " with six months' residence, without reference to the question 
whether they were native-born of the State, or, being of foreign birth, 
have been naturalized under the act of Congress ; and Wisconsin has 
proceeded one step further, and thrown wide open the doors of her 
temple to all who have declared their intention to become citizens. 
These will suffice for an illustration ; and if it were necessary to bring 
to bear the action of the State legislatures, I might content myself by 
referring to the act of Connecticut, passed in 1833, making it highly 
penal for any one in that State to give instruction, or open a school for 
that purpose, to colored persons of other States. The preamble to this 
act tells us that the residence of such persons should be discouraged 
and prevented as an evil to the State. It was for just such reasons 
that South Carolina, Alabama, and other southern States, have passed 
similar laws ; yet, if I mistake not, no State has been more bitter than 
Connecticut in the denunciation of them. Nor do these acts of the 
legislature rest alone upon legislative authority. They have been sus- 
tained by the highest judicial tribunals of the States. In the case of 
the act just referred to, the power of the State under the federal con- 
stitution was challenged before the courts of that State ; and you will 
pardon me for quoting a passage from the decision of Chief Justice 
Daggett : " To my mind, it would be a perversion of terms, and the 
well-known rules of the constitution, to say that slaves, free blacks, or 
Indians, were citizens within the meaning of that term, as used in the 
constitution. God forbid that I should add to the degradation of this 
race of men; but I am bound by my duty to say they are not citizens." 
(Crandal vs. State, 10 Conn., 347.) 

It is not my intention to enter into an elaborate argument, but to 
state briefly the reasons upon which I have formed my opinions on 
this subject. The provisions of the constitution already referred to, 
while they do not cover the whole ground, and divest the States of all 
power over the subject-matter, have yet a large field for their operation. 
" Citizens of one State removing to another," (in the language of the 
chief justice of Massachusetts,) "become citizens of the adopted State 
without naturalization, and have a right to sue and be sued as citizens; 
and yet this privilege is qualified, and not absolute, for they cannot 
enjoy the right of suffrage, or of eligibility to office, without such 
term of residence as shall be prescribed by the constitution and laws 
of the State into which they shall remove. They shall Have the priv- 



7 



ileges and immunities of citizens — that is, they shall not be deemed 
aliens, but may take and hold real estate, and may, according to the 
laws of such States, eventually enjoy the full rights of citizenship, 
without the necessity of being naturalized." (Abbott vs. Bailey, 6 
Peck., 91.) 

If, therefore, there is any such evil as is said to exist, the evil arises 
out of State legislation, and it is for the States to apply the remedy. 
They can lengthen the probationary period, or shorten it, at will ; but, 
as Congress is not constitutionally authorized to control this subject, 
the propriety of engaging its discussion of the proposed measures may 
well be doubted. I believe there is no power of the States so sacred 
as the right to determine who shall exercise the elective franchise. I 
believe, further, they have never yielded this right, and never will. 

With great respect, your obedient servant, 

P. PHILLIPS. 

Washington, December 18, 1854. 



LETTER 



HON. P. PHILLIPS, OF MOBILE, ALA., 



RELIGIOUS PROSCRIPTION OP CATHOLICS. 



LETTER. 



Washington, July 4, 1855. 
My Dear Sir : I readily comply with your request to give you my 
impressions of the last development of political events. Nothing ap- 
pears to me more interesting to the country than the recent demon- 
strations of the " Know-Nothings," at Philadelphia and Montgomery, 
against the Catholics. In their national platform they declare that 
" Christianity, hy the constitutions of nearly all the States, hy the de- 
cisions of the most eminent judicial authorities, and by the consent 
of the people of America, is considered an element of our political 
system." The application of this is not very apparent. But if it was 
intended to assert, as I presume it was, that in the federal constitu- 
tion, which forms the bond of our Union and constitutes the "political 
system" of the United States, there is any such element incorporated, 
either by expression or necessary implication, then I deny the truth of 
the proposition. There is nothing clearer than that in the formation 
of the constitution it was intended emphatically to exclude all con- 
nection with any religious faith whatever. Separation of Church and 
State, eternal divorce between civil and ecclesiastical jurisdiction, 
were cardinal principles with the sages and patriots to whom not only 
we, but all mankind, are indebted for this model of a republican 
government. No, my friend ; they possessed too much wisdom and 
practical good sense to be content with a mere feeble imitation of the 
existing order of things. They distinctly saw the evil fruits which the 
conjunction of political and religious power had everywhere produced, 
and in the discharge of the high duty intrusted to them — the highest 
that man could be charged with — they determined to profit by the ex- 
ample, and inaugurate a " political system," whose dominion should 
be exclusively confined to the political relations of its constituents, 
acknowledging in the eye of the law the perfect equality of all sects 
and faiths, and leaving the whole subject of religion, and its require- 
ments, to the dominion of that Higher Tribunal which alone can search 
the hearts and judge the motives of men. The constitution itself 



4 



gives evidence of the solicitude felt upon this subject, and the debates 
which led to its adoption show the high tone of feeling that existed in 
the convention. When Mr. Pinckney reported to that body his pro- 
viso, "that no religious test shall ever be required as a qualification 
to any office or public trust under the authority of the United States/' 
the only opposition he met with was from Mr. Sherman, who declared 
it as " unnecessary, the prevailing liberality being a sufficient guarantee 
against such test." But notwithstanding the adoption of this em- 
phatic declaration, so jealous were the people at that time of any 
governmental- interference or connection with religion , that the first 
amendment to the constitution proposed and adopted was the addi- 
tional guarantee that " Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise thereof." 
In those countries where Christianity avowedly forms a part of their 
political system, there also the laws define the particular form of faith 
to which the government attaches itself, and denounce the penalties for 
non-conformity. Let us once admit that it forms "an element of our 
political system," and we should soon be called upon to submit our 
consciences to Congressional dictation. The argument would then be 
not too remote, that the Christianity intended, was that professed by 
the great majority of the people at the formation and adoption of the 
constitution, and that this was not only a Christian but an anti- 
Catholic government. 

It is in your remembrance that many years ago a large and respect- 
able body of citizens petitioned against Sunday mails. They evidently 
proceeded upon the idea that this was a Christian government, and 
that the violation of the Christian Sabbath was a sacrilege the gov- 
ernment was bound to put an end to. Congress rejected the petition, 
and their action was approved by the country. Now, this approval 
could only rest upon the denial of the proposition that "Christianity 
was an element of our political system." But, my dear sir, whether 
right or wrong on this head, it must be evident that the assertion of 
this principle in a political platform, preluded by a solemn "acknowl- 
edgment of that Almighty Being who rules over the universe, and 
presides over the councils of nations," was a mere self-sanctification, 
intended to appeal to the religious feelings of the country, that they 
might the more easily be drawn into the vortex of political strife, and 
combined for what is declared to be one of the great objects of the 
movement — "resistance to the aggressive policy and corrupting ten- 
dencies o f the Koman Catholic church in our country by the advance- 
ment to all political stations — executive, legislative; judicial, or dip- 



5 



lomatic — of those only who do not hold civil allegiance, directly or 
indirectly, to any foreign power whether civil or ecclesiastical, and who 
are Americans by birth, education, and training." 

Having first asserted that Christianity was "an element of our po- 
litical system," do you not perceive how smoothly the inference is 
drawn that a pure Christianity requires the exclusion of Catholics 
from the rights of citizenship. I know that upon a mere quibble, 
it may he denied that this inference is justified; hut the quota- 
tion means this or nothing. The circumstances which surrounded 
this declaration have written upon it its true scope and character. 
No great change in government was ever accomplished by the full 
development of its principles in the inception of the movement. Our 
own Eevolution rested for a period upon a redress of grievances, accom- 
panied with an earnest protestation of continued loyalty to the British 
Crown. The change now aimed at for excluding Catholics from their 
share in the government of the country, like all radical and revolu- 
tionary movements, must he effected, if effected at all, by gradual 
stages of progress, which inure us to the journey, and accustom us 
to the road. Let those who may be unwilling to admit that my 
inference is just, read attentively the events which are transpiring 
around us. The sentiment of the Philadelphia convention is repeated 
at every assembly of the party. Its echo at Montgomery, in our State, 
proclaims "opposition to the election to office of every man who re- 
cognises the right of any religious denomination to political power, 
or the authority of any higher law than the constitution of the United 
States." The country is flooded with a spurious literature, in which 
the imagination of its authors has been stimulated into activity to 
portray the fancied horrors of cloister and cell, and describe the 
Catholic priesthood as clothed in the garments of every crime. In 
many parts of the country the pulpit is fulminating doctrinary essays 
to prove the Catholic church corrupt, and its adherents unfit deposit- 
aries of the rights of citizenship. If a Catholic citizen, however 
capable and honest, be appointed to political position, a howl is heard 
throughout the land; and denunciation follows the appointment. 
What is the meaning of all this? I cannot be deceived by any "set 
phrase of speech." I tear off the flimsy disguise of words, and I 
behold the naked and hideous truth: Eeligious Intolerance ! Party 
assemblies have met ere this ; declarations of political principles have 
been common in our practice ; new parties have been formed ; old ones 
have been modified ; but when before in our history has it been con- 
sidered necessary to anathematize "the aggressive policy and cor- 



6 



rupting tendencies of the Eoman Catholic church?' * When before 
has it been found proper to introduce religion into our political organ- 
izations? When before was the fitness for political office tested not 
by the honesty or capability of the candidate, but by the religious 
faith he professed? Times have, indeed, changed, and we have 
changed with them. When the venerable Carroll took up the pen to 
affix his name to the immortal "Declaration," no man cried "Hold! 
you are a Catholic." If a new necessity has sprung up justifying a 
new law, then, I ask, where does it exist, and in what form does it 
appear? Surely Protestantism has not become so ^eeak as to require 
protection from the arm of a political party. Having entertained no 
fears of the Pope of Koine when in power, does it fear his dominion 
in this country now that he is dependent on foreign bayonets to pre- 
serve his dominion in Kome itself? It would be unjust to construe 
these resolutions as vague generalities, having no application to any 
existing evil — the remedy for which was to be found in this new party 
organization. What, then, is their application? Do "the aggres- 
sive policy and corrupting tendencies of the Eoman Catholic church" 
point to a condition of things existing among us? Do there exist 
among us, in the language of the Montgomery resolutions, a body of 
men "who recognise the right of a religious denomination to political 
power, or the authority of any higher law than the constitution of 
the United States?" Against whom is the new law to be enforced? 
It is vain to attempt disguise or prevarication. The alleged evil is 
declared to exist here, and the new rule is to find its justification in 
the religious faith of our Catholic citizens — citizens secured in their 
faith, not only by the written stipulations of our federal and State 
constitutions, but, as with us, by a solemn treaty stipulation "that 
the inhabitants of the ceded territory shall be incorporated in the 
union of the United States, and admitted as soon as possible, according 
to the principles of the federal constitution, to the enjoyment of all the 
rights, advantages, and immunities, of citizens of the United States; 
and in the mean time shall be maintained, and protected, in the free 
enjoyment of their liberty, property, and the religion they profess!" 
Let these questions be answered, not by mere speculation, much less 
in the spirit of captiousness, but by the solemn acts and declarations 
of the most author it aiive assembly. When before the grand council or 
convention at Philadelphia the delegation from Louisiana juesented 
their party credentials — a delegation composed of men whose respect- 
ability was not questioned, whose good faith, was not suspected —they 
were spurned from the council, as unfit for the political brotherhood, 



7 



because the lodge they represented held political communion with Catho- 
lics! It was in vain that the odious doctrine was denounced by them 
of an allegiance superior to the constitution, or inconsistent with the 
highest discharge of political duties. It was in vain that the fact was 
recognised that the delegation contained but one Catholic (Gayarre, 
the distinguished historian.) There was no virtue, no party affinity, 
that could redeem their error, or "wash out the damned spot." In 
the judgment of this tribunal, no one could be a "true American" 
and a catholic! Here, then, we have the new "American doctrine," 
explained by the "true Americans" themselves, and a practical 
application and development of their ambiguous resolves. 

Odious as 9,11 this appears, it must not be supposed that this party 
has originated any new element of power : religious intolerance is as 
old as the history of man. In this country, where freedom and equal- 
ity, under the shadow of the law, walk hand in hand throughout the 
land, intolerance lies dormant in the breast, or, when excited into 
action, shrinks from the public eye. It is, however, fully entitled to 
the "bad eminence" of being the first in the history of our country 
which has dared openly to stimulate this feeling for political objects: 
thus, in the name of Christianity itself, laying the train to light the 
torch of religious nersecution. 

If the leaders in this crusade were religious fanatics, we might re- 
spect their sincerity, though we denounced their action. But who 
are they? The Whig and Democratic parties are said to have become 
corrupt. But this new party, as you see, is very much controlled by the 
scum which the agitation of the old ones has thrown off. Look 
around, my dear sir, and inquire how many of those leaders have been 
noted for their piety, or characterized by devotional feeling, who now 
flaunt their religious robes in the face of every passer-by. How ap- 
propriately may they be described — 

"With smooth dissimulation skilled to grace. 
A devil's purpose, with an angel's face." 

I do not doubt the sincerity of the great mass of those who have been 
deluded into these lodges. I believe the mass of all parties to be 
honest; but I also believe that the great majority of their leaders 
are impelled by the hope of obtaining from a new organization the 
political promotion which they despaired of receiving from the old 
onfes. What faith can we have in the sincerity of the men, now so 
zealous in their anti-Catholic professions, who but a few months ago 
made the air redolent with their cries against our present worthy 



8 



Executive, because the constitution of New Hampshire excluded Cath- 
olics from office? 

You perceive, I have treated the movement of the "Know Noth- 
ings" as a direct attack upon the constitution itself, because I really 
regard the plea which acknowledges that the Catholics are to be ex- 
cluded by voluntary associations bound by oaths, but denies that any 
"legislative enactment" is to be resorted to for that purpose, as be- 
neath criticism. Why, my dear sir, if the exclusion be justifiable and 
necessary, should it not be engrafted upon our constitution? If the 
people of these States should ever receive this bastard "American- 
ism" as true republicanism, what should prevent that opinion from 
being organized into law? Is law in this country anything else but 
organized public opinion? It is a weak and miserable design, which 
seeks by indirection to effect the disfranchisement of a portion of our 
citizens, while it cowardly admits that the law which denounces this 
disfranchisement should be preserved unaltered. 

I confess to you, my friend, that a few months ago I looked with 
feelings almost of despair upon the downward course of our political 
affairs. My confidence, however, is restored; the South, always con- 
servative, always jealous of power, and comparatively free from those 
sudden excitements to which the denser populations of the North are 
subject to, will vindicate the character which she has nobly earned. 
Virginia, the oldest of the sisters, has led the way to triumph ; and 
Alabama, one of the youngest and fairest, will come out of her impend- 
ing struggle radiant in victory, and with garments undefiled. 

Let, however, the result be what it may, if the present brings no 
thanks to you and others, who have stood by the principle of religious 
equality and freedom, the future, the not distant future, will be yours. 

Yours, most truly, 

P. PHILLIPS. 

Jxo. Forsyth, Esq., 

Editor of 11 Register," Mobile, Ala. 



SPEECH 



or 



HON. PHILIP PHILLIPS, OF ALA., 

H 7 7 



6 hi 



THE FRENCH SPOLIATION BILL, 



8M 



REPLY TO HON. JAMES L. ORR, OF SOUTH CAROLINA. 



HOUSE OF REPRESENTATIVES, JANUARY 25, 1855, 



WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1855. 



.3om 



r 



THE FRENCH SPOLIATION BILL. 



The House being in the Committee of the Whole 
on the state of the Union — 
Mr. PHILLIPS said: 

Mr. Chairman: The subject under considera- 
tion has been illustrated by the most eminent 
statesmen of our country. I do not promise that 
I shall be able to add to the discussion heretofore 
had, one new fact or argument. My attempt will 
be, to array the facts in the simplest form, and to 
argue as concisely as possible, the legal and logical 
deductions from them. In doing this, should 1 
carry conviction to a single mind in this Hall, I 
shall feel that I have accomplished something in 
the cause of justice and national honor. 

Mr. Chairman, the bill under consideration con- 
nects itself with our earliest history as a nation; 

i aye, sir, with our very birth as a nation. It brings 
before us the scenes and events of that great revo- 
lutionary struggle by which our liberties were 
established, and our independence made secure. 
Here, sir, we find this national Hall decorated 
with the portraits of the two great men of that 
eventful and trying period. On your right and on 
your left are Washington and Lafayette. They 
who now stand face to face, then stood side by 
side and shoulder to shoulder. Together, as the 
representatives of their' Governments, they en- 

— countered the dangers and perils of the conflict. 
Who does not remember the desperate condition 
of the American Army, the despondency of our 
officers, the cruel privations and sufferings of our 
men, at that period of the war, when the news 
arrived that the States had entered into a treaty 
of alliance with France, by which that Govern- 
ment stipulated " to maintain effectually the lib- 
erty , sovereignty, and independence of the United 
States, as well in matters of Government as of 
commerce," (treaty of alliance, February 6,1778.) 
Sir, this intelligence brought joy and healing on 
its wings; it stimulated the bold, it confirmed the 
wavering, it lifted up and strengthened the down 
cast. I will not say that the independence of the 
States would not have been finally achieved by 
their own rapidly increasing population and re- 



sources, but this I do say, that without the aid of 
France, at that time, the result of our revolutionary 
war would have been more than problematical. 

But it is important to be considered that, while the 
treaty guaranteed the sovereignty and independ- 
ence of the States, and the possessions which they 
might acquire by conquest or treaty stipulations, 
they, on their part, guaranteed to France the then 
possessions of the Crown of France in America, 
as well as those it might acquire by the future 
treaty of peace. By the subsequent treaty of 
amity and commerce, of 6th February, 1773, and 
the convention of November 14, 1783, it was 
agreed that the French should enter American 
ports with their prizes — while nations at war with 
France were excluded from the like privilege. Pri- 
vateers under commission hostile to France were 
denied the right to fit out their vessels or carry on 
barter there, and to the French consuls full power 
and jurisdiction were given over all French ves- 
sels in civil disputes arising thereon, with a com- 
plete inspection over said vessels and their crews. 
Such, in brief, were the mutual stipulations entered 
into between the two Governments. 

I shall not, Mr. Chairman, go into the question 
whether these stipulations were fulfilled in good 
faith. I shall not inquire whether the aid promised 
was given. I pass by the obvious fact that not- 
withstanding the eighth article of the treaty of 
alliance, that neither of the parties " should con- 
| elude either truce or peace" without " the formal 
consent of the other first obtained," that in 17S2-3 
the States did conclude a peace with Great Britain 
without the knowledge or consent of their ally. 

These are matters which involve the honor of 
our country, and the consideration of them is not 
called for by the demands of the subject now before 
us. Let it suffice to say that France was loud in 
her complaints for alleged violations of treaty com- 
pacts; and that, on the breaking out of the war 
in 1793, with Great Britain, she commenced a sys- 
tem of aggravated plunder and confiscation of our 
commerce; and this was carried to such extent 
that the estimate of the number of vessels seized 
prior to 1S00 has gone as high as two thousand. 



4 

This statement, though brief, is sufficiently full I i 
to show the origin of the claims or pretensions on ! < 
the part of both Governments, and we proceed in ' 
the discussion with the indisputable and undis- s 
puted fact of American losses, to a large amount, I 
occasioned by seizures and embargoes, under < 
authority of the French Government. 1 

The gentleman from South Carolina, [Mr. Orr,] 
who has just taken his seat, while admitting that ! i 
our commerce was harassed, and our citizens ' 
despoiled, denies that this afforded any claim for < 
reparation on the French Government, because, j j 
as he asserts, these wrongs were inflicted during ' 
a period of war between France and the United j ; 
States. To support this proposition the gentle- ' « 
man has read the act of 1798, and other acts of ] 
Congress. But is it not a surprise to hear it 
announced that these acts were equivalent to a 
declaration of war between these two countries ? 
Under the Constitution, Congress alone has the 
power to declare war. Ijis Congress, the Senate, \ 
House of Representatives, and President; the j 
whole legislative power 'of the Government. I 1 
call for the declaration of war made against France. 1 
Who made it? Where is it? When did the war 
begin? When did it end? If ended, where is 
the treaty of peace? Is the fact of war one so 
doubtful, secret, or mysterious, that we are chal- ' 
lenged to debate the question of its existence ? 
The statutes which the gentleman has read, show 
partial hostility between the two Governments, ; 
but no war or general hostility, and the gentleman 
has fallen into the error of not recognizing the 
broad line of demarcation, which, on well estab- 1 
lished principles ©f international law lies between 
them. Without intending the slightest disrespect : 
to my friend from South Carolina, I cannot feel 
it to be necessary to press this distinction further 

Having shown that the claims of our citizens 
did not grow out of the aggressions of war, let us | 
inquire what view our Government has taken of 
them,^whether they have ignored their' existence, < 
or admitted their validity ? Notwithstanding the 
denial of the gentleman, I think I shallbe able to 
show that our Government has uniformly recog- I 
nised the losses thus inflicted on our citizens, and 1 
considered them entitled to redress. 

The gentleman from South Carolina has intro- 
duced theact of Congress of 37S8, which, in terms, 
abrogates the treaties with France. At any rate, 
it will be admitted that the treaties were binding 
until the passage of the act. Prior to that time,|it 
follows, the treaties were operative, and as a large 
portion of these claims are for seizures made before | 
the date of that act they would be excluded from j 
the objections urged by the gentleman. But let us 
return to the question of recognition by our Gov- j 
ernment. The preamble of that act recites as a J 
ground of the abrogation that: 

" Under the authority of the French Government there is I 
yet pursued agninst the United States a system of predatory 
violence, infracting the said treaties, and hostile to the rights 
Of a free and independent nation." 

Here is a solemn acknowledgment of the wrong 
committed by the French Government upon our ; 
citizens, wrongs of so grievous a nature as to 
justify the extremest action of a retaliatory charac- j 
ter. But this recognition does not stop here. The i 
Government, admitting the obligation of protec- 
tion due to its citizens, sent two commissions to j 
France, one in 1797, composed of Messrs. Pinck- j 



ney, Marshall, and Gerry; and the other in 1799, 
consisting of Ellsworth, Davie, and Murray. 
These commissions were to arrange, and, if pos- 
sible, to adjust all the difficulties pending between 
the two countries, included in which were the 
claims of our citizens for what are now known as 
" French spoliations." 

The instructions to our Ministers in 1797 were 
as follows: 

"Although the reparation -for losses sustained by the 
citizens of the United States, in consequence of irregular 
or illegal captures or condemnations, or forcible seizure, or 
detentions, is of very high importance, and is to be pressed 
with the greatest earnestness ; yet it is not to be insisted on 
as an indispensable condition of the proposed treaty. You 
are not, however , to renounce these claims of our citizens, 
nor to stipulate that they be assumed by the United States 
as a loan to the French Government."— Doc. 102, p. 455. 

In 1799, the instructions were somewhat varied: 
" At the opening of the negotiation you will inform the 
French Ministers that the United States expect from France, 
as an indispensable condition of the treaty, a stipulation to 
make the citizens of the United States full compensation 
for all losses and damages which they shall have sustained 
by reason of irregular or illegal captures or condemnations 
of their vessels, and other property, under color of authority 
or commissions fiom the French Republic or its agents." — 
Doc. 102, p. 562. 

Now, with these specific directions, if a treaty 
had been made, which wholly omitted any pro- 
vision for indemnity, it would have been such a 
violation of duty on the part of the commissioners 
as to have occasioned the greatest surprise. The 
labor of the commission terminated in the " con- 
vention" of 30th September, 1800, the second ar- 
ticle of which declares: 

"The Minister Plenipotentiary of the two parties not 
being able to agree at present respecting the treaty of 
alliance, 6th February, 1778, the treaty of amity and com- 
merce of same date, and the convention 14th November, 
1788, nor upon the indemnities mutually due or claimed, the 
parties will negotiate further on these subjects at a conve- 
nient time." 

When the convention was presented to the Sen- 
ate of the United States, this second article was, 
by them, stricken out, and a provision added that 
" The present convention shall be in force for the 
term of eight years from the time of the exchange 
of ratifications." Upon the return of this "conven- 
tion" to France, the French consul agreed to the 
retrenchment of the second article, and the modi- 
fication as to its duration, but with a proviso to 
which i would ask the special attention of the 
House: 

" Provided, That by this retrenchment the two States 

RENOUNCE THE RESPECTIVE PRETENSIONS WHICH ARE 
THE SUBJECT OF THE SAID ARTICLE." 

This was on the 31st July, 1801, and the final 
ratifications took place 19th December, same year. 
Now, it cannot be denied that the claims of our 
citizens for spoliations were included among those 
indemnities, the adjustment of which were, by the 
second article, postponed to a " convenient time,'* 
and therefore constituted a part of those "preten- 
sions" which, by the proviso, were renounced. 

To break the force of this position, it is con- 
tended that the Senate never agreed to the proviso; 
but, I cannot learn they ever disagreed to it; but, 
on the contrary, the " convention" with the pro- 
viso being again before them, on the 19th 
December, they resolved, two thirds concurring, 
that they consider the convention as fully ratified, 
and they returned it to the President for promul- 
gation, who proclaimed it in the usual form. 



5 



The gentleman has appealed to Mr. Madison's 
declaration, and in the very extract he read, it is 
stated by Mr. M. that he did not attach much 
importance to the proviso, for the legal inference 
of the treaty, as ratified without the proviso, was 
as the proviso declared it. That is, when the 
Senate struck out the second article, which pro- 
vided for an adjustment, it was equivalent to an 
abandonment of all mutual liabilities. We might 
stand, therefore, upon the legal inference as stated 
by Mr. Madison, the witness summoned by the 
gentleman. 

Mr. ORR. Legitimate inference. 

Mr. PHILLIPS. Well, sir, legitimate inference. 
What is that but legal inference, the very origin 
of the word, lex legis, shows it to be such an 
inference as the law would make. And is it 
upon such an argument as this the plain and em- 
phatic terms of this proviso are to be annulled, 
and the Government now be permitted to set up 
that they never renounced the claims of our 
citizens ? 

My friend laid some stress upon the expression 
in the second article, that the parties were "to 
negotiate further on these subjects, at a convenient 
time." But I would ask, in the name of humanity, 
in the name of justice, when will it be a " conve- 
nient time," if not now, after the lapse of more 
than half a century? When will it be a " conve- 
nient time," if not now, in the midst of peace, an 
abundant prosperity, and an overflowing Treas- 
ury ! 

But, sir, let us pass on. We have demonstrated 
that our citizens had just claims or pretensions 
again^J, the French Government; that those claims 
or pretensions were of such a character as to have 
been made the foundation of an act abrogating our 
treaties with that Government; that they formed 
the instructions to our Minister in 1799, which went 
so far as to direct " that the recognition of these 
claims should be enforced, as an indispensable 
condition of the treaty;" that the second article 
of the treaty of 1800 did provide that these ques- 
tions should be adjusted at a " convenient time;" 
that this second article of the treaty was stricken 
out by the Senate of the United States, on its 
ratification, and a proviso added that the conven- 
tion should exist but for eight years; that these 
amendments were concurred in by the French 
Government, with the express stipulation, that 
this retrenchment of the second article was to be 
considered as a mutual abandonment by the two 
Governments of their mutual claims. After all 
this, can it be still insisted that our Government is 
at liberty to maintain that our citizens had no 
claims against the French Government, and that 
therefore the treaty forfeited none? 

The question now remains, were these claims 
or pretensions valuable ? In answering, I will refer 
to no authorities of a secondary or subordinate 
character, nor shall I rely upon any but document- 
ary evidence, derived from the highest official 
sources — from men who lived at the date of these 
transactions, fully acquainted with their history, 
and having authority to speak. 

Timothy Pickering (Secretary of State in 1800) 
says: 

" If the relinquishment (of these claims) had not heen 
made, the present French Government (1824) would be 
responsible; consequently the relinquishment by our own 
Government having been made, in consideration that the 



French Government relinquished its demand for a renewal 
of the old treaties, then it seems clear that, as our Govern- 
ment applied the merchants' properly to bay off those old 
treaties, the sums so applied should be reimbursed. " — Letter, 
l$th November, 1824. 

Robert R. Livingston, Minister to France, 
April 27, 1803, says: 

" The payment for illegal captures, with damages and 
indemnities, was demanded on one side, and the renewal 
of the treaty of 1788 on the other ; they were considered as 
of equal value, and they only formed the subject of the 
second article."— Doc. 102, p. 717. 

John Marshall (one of the Ministers) says: 
" I would positively oppose any admission of the claims 
of any French citizen, if not accompanied with the admis- 
sion of the claims of American citizens, for property cap- 
tured and condemned for want of a role d> equipage. My 
reason for conceiving that this ought to be stipulated ex- 
pressly, was a conviction that, if" it was referred to com- 
missioners, it would be committing absolutely to chance 
as complete a right as any individual ever possessed." — 
Journal, p. 471, No. 316. 

Now, sir, as the gentleman from South Carolina 
has referred to Mr. Madison in support of his 
opposition, let us see how far such a reference is 
justifiable: 

"James Madison, (then Secretary of State,) February 
6, 1804, says: ' The claims from which France was released 
were admitted by France, and the release was for a valuable 
consideration in a correspondent release of the United States 
from certain claims on them.' " (Doc. 102, p. 795.) 

The opposition is welcome to all the aid and 
comfort it can derive from Mr. Madison. We 
have thus presented the clear avowals of two of 
our Secretaries of State, and of two of our Com- 
missioners, made at a time when the circumstances 
of the treaty were fresh in the minds of all, and 
who were parties concerned in its formation and 
ratification. 

Nor was the value of these claims or pretensions 
alone admitted by our Government, they were 
also so regarded by France, as is seen in the cele- 
brated proviso to which we have already referred, 
and by other evidence to which I will presently 
advert. 

My friend from South Carolina, in his very 
earnest speech, stated that members should beware 
of the statements used in the presentation of 
this subject by parties interested, as in many 
cases they were unreliable and deceptive; and in 
proof of this, he referred to the report made by 
Mr. Giles, which he described as not favoring 
these claims, as it had been generally represented. 
I differ with the gentleman as to his construction 
of that report. It is true that it submits the ques- 
tion whether the Government was " bound to 
indemnify the memorialists," but the facts stated 
in the report, the order in which they are arranged, 
and the means by which they are connected, all 
speak out the favorable conclusion at which the 
committee had arrived, as clearly and inevitably as 
though express terms of approbation had been 
used. 

Mr. ORR. Read what Mr. Giles says. 

Mr. PHILLIPS. My limited time will not per- 
mit me to read extensively from the report, but I 
will read a short extract from it. Now, sir, the 
great question between us is, whether our Gov- 
ernment used these claims for spoliation in its 
treaty, and did, by the terms of that treaty, re- 
lease the rights of our citizens? 

Mr. ORR. I will reply to the gentleman's 
question if he will permit me. 
I Mr. PHILLIPS. As my time has so nearly 



6 



run out I must really adopt the excellent rule laid 
down by my friend on the opening of his speech, 
that he would consent to no interruption. 

[Cries of" That's right] !" 

Mr. ORR. Only a moment. The question 
laid down by the gentleman is not the point in 
controversy. The point is, did the Government 
of the United States surrender these claims for a 
consideration ? That is what the gentleman from 
Alabama alleges; that is what I deny. 

Mr. PHILLIPS. Very well, I did not state 
the proposition, as to its effect, differently from 
the assertion made by the gentleman. He would 
now seem to admit that the Government did release 
these claims, but that they received no consideration 
therefor. Mr. Giles, in this very report, after 
speaking of the instructions to the Ministers in 
1799, says that the second article of the conven- 
tion was introduced as ''the best stipulation it 
was in their power at that time, to make." Now 
Mr. Giles continues : 

" It was understood, both by the Chief Consul and the 
American Envoy then at Paris, that the object of expung- 
ing the said second article was the retrenchment of the 
respective pretensions of the two Governments which 
were the object of said second article ; and, with an expla- 
nation to that effect, on the3lst July, 1801, tke Chief Consul 
ratified said convention.^ 

Having given the statement of facts upon which 
the claimants rely, Mr. Giles says: 

" From these circumstances, and a recurrence to the fifth 
article of said convention, (providing for debts due by con- 
tract, with a special exception, that it did not extend to 
indemnities claimed on account of captures or confisca- 
tions,) it appears that the exclusion of said article of the 
convention was considered as a renunciation of the in- 
demnities claimed by citizens of the United States for spo- 
liations and depredations upon their commerce, so far as the 
Government might otherwise have been instrumental in 
obtaining such indemnities." 

Shall we seek for any further consideration than 
is to be found in the fact that our Government, 
having other outstanding differences with France, 
arising out of onerous treaty stipulations, did, for 
the purpose of settling these differences, enter into 
a convention by which they " renounced" the 
claims of our citizens? That Government, which 
owed to them protection, and through which alone 
they could call for indemnity , made its abandon- 
ment of them a condition in a new governmental 
arrangement. This, Mr. Chairman, is not only 
the American view of the subject, but it is equally 
that of France. In the conversation of the First 
Consul, a short period subsequent to the conven- 
tion, referred to by the gentleman from Ohio, [Mr. 
Disney,] he distinctly states: 

•'The suppression of this article at once put an end to 
the privilege* which France had by the treaties of 1778, 
and annulled the just claims which America might have 
made for injuries done in time of peace. — Gout gaud's Me- 
moirs, vol. ti, p. 95. 

This is a very important statement, and estab- 
lishes — 

1. That France asserted treaty privileges; 

2. That we had jusl claims for injuries done in 
time of peace; and 

3. That the suppression of the second article 
extinguished the claims of both parties. 

This, sir, is the declaration of one of the high 
contracting parties, made at a time, and under cir- 
cumstances, which free it from all suspicion, and 
is, of itself, a full answer to all the objections which 
have been urged in this Hall. When, then, the 
gentleman insists that the renunciation by our 



Government was made without a consideration 
I point him to these facts, and oppose to his asser- 
tion the declaration of Madison, in 1804: 

" The claims from which France was released, were 
; admitted by France, and the release was for a valuable con- 
sideration in a correspondent release of the United States 
from certain claims on them." 

I understood the distinguished gentleman from 
Missouri [Mr. Benton] as ridiculing the idea 
that any value was ever attached by France to 
the stipulations of the treaty, and convention of 
1778 and 1788. But, in addition to the answer 
already given, we have a full refutation in the 
instructions of 1797 to Pinckney, Marshall, and 
Gerry, requiring them to urge upon France the 
jj acceptance of "a substitute for the reciprocal 
J guarantee;" but " if France should insist on the 
j mutual guarantee," then " to aim at some modi- 
! fixation of it." After further suggestions, the 
< \ instructions proceed: 

! " Specific succors have the advantage of certainty and 
1 1 are less liable to occasion war. On the other hand, a gen- 
ii eral guarantee allows a latitude for the exercise of judg- 
![ ment and discretion. 

" On the part of the United States, instead of troops or 
! ships of war, it will be convenient to stipulate for a mode- 
j j rate sum of money, or qaantity of provisions, at the option of 
I France. The provisions to be delivered at our own ports 
iiin any future defensive war. The sum of money, or its 
|| value in provisions, ought not to exceed the sum of $200,000 

a year during any such war."— Page 458. 

In 1802, Mr. Livingston , writting to Talleyrand , 

says: 

" It will be well recollected by the distinguished charac- 
ters who had the management of the negotiation, that the 
payment for illegal captures, with damages and indemnities, 
was demanded on the one side, and the renewal of the 
treaties of 1778 on the other ; that they are considered as 
of equivalent value, and that they only formed the subject 
of the second article." 

We come now to the argument that the treaties 
and the convention with France were expressly 
abrogated by the act of 1798, and that subsequent 
prizes and seizures, under the authority of the 
French Government, formed no subject for indem- 
nity. 1 do not intend to repeat the argument that 
this and kindred acts did not amount to a dec- 
laration of war, but only to partial hostility. I 
am willing to leave it on the foundation upon 
which it already stands. If it did not produce 
this consequence, then I am at a loss to know what 
application is made of the fact, and how the ques- 
I tion at issue is affected thereby. 

It would seem to be a clear proposition, that 
i one Government cannot, by its own act, abrogate 
a treaty. Each party has the same right of judg- 
, ing of alleged infractions. At the time we were 
charging v/ant of faith on the part of France, 
J she was loud in her denunciation of our faithless- 
j ness. Even a state of actual War does not ex- 
tinguish treaty stipulations intended to be perpet- 
1 ual. They lie in abeyance during the war; but 
j as soon as it ceases, they rise up again in their 
original vigor, and maintain their binding efficacy 
; until waived by the parties, or new or inconsist- 
; ent stipulations are entered into. The case was 
; thus presented by the French Ministers, on 26th 
; August, 1800: 

! " When, on the one hand, Congress declares that France 
1 has contravened these treaties, and that the; United States 
are released from their stipulations; and when, on the 
other, the Government of France declares that she has 
conformed to these treaties, that she desires their execu- 
tion, and that the United States alone have infringed 
them, where is the tribunal or the law to inforce the ex- 
I oneration in preference to the execution ? 



7 



"If one of two contracting parties is at liberty, whenever 
he may please, to cancel his obligations, in virtue of his 
own judgment concerning facts, or men, or tiling, no bind- 
ing force can be attached to treaties, and the term itself 
should be erased from every language." 

It would seem to be admitted that the act of 
1798 could not produce any effect upon occur- 
rences prior to that period, and as to those subse- 
quent to the act, and prior to the date of the con- 
vention. I have not been able to discover that 
our Government has ever recognized any distinc- 
tion between them. 

There is one other fact which I desire to bring 
to the notice of the committee before I close. It 
was evidently the policy of our Government to 
encourage our merchantmen to keep the seas in 



Unable to overthrow the argument uj;on which 
i the bill is rested, the effort is to destroy it by 
' appeals to prejudice. Much stress is placed upon 
! the " staleness of the demand." It is true that 
this indebtedness is of long standing, but this is 
the misfortune, not the fault of the claimants, for 
they have been steadily prosecuting their demand 
from the time of its accrual down to the present 
I day. And now, having been baffled by Congress 
j for upwards of fifty years, does it lie in their 
mouth to claim the benefit of the delay which 
! they themselves have created ? 

1 have thus, Mr. Chairman, presented this case 
without involving in its discussion any doubtful 
! question of national law. WhetheraGovernment 



face of the depredatory course of France, and for « bound to go to war in the prosecution of the 
this purpose the protection of the Government ! just claims of its citizens? whether, if through 
was promised in the strongest and most encour- ! weakness, indifference, or neglect, it fails to give 
aging form. On the 27th of August, 1793, Thomas || adequate protection to its citizens, it is bound to 
Jefferson addressed a letter to the merchants of j compensate for loss? are questions wh.ch the 
the United Staes, in which it is stated: f f ct s of this case do not require us to debate, for 

"Complaint having been made of some instances of 1 ! the facts are that the Government did assume the 
unjustifiable vexations and spoliation committed on our ; prosecution of the claims, and relinquished them to the 
merchant vessels by the privateers of the Powers at war, j debtor. 

and it being possible that other instances may have hap- | i n view of the l ar g e amount involved in this 
pened of which no information has been given to the Gov- , j k M Chairman tna t a nep-ative would 

ernment, I have it in charge from the President to assure I , blll > \ Know, Mr. Chairman, that a negative would 
the merchants of the United States, concerned in foreign I be what is very familiarly termed in this House 
commerce or navigation, that due attention will be paid to j a " safe vote," and in this connection the gentle- 
any injuries they may suffer on the high seas, or in foreign , man from s outh Carolina has felt himself called 
countries, contrary to the law of nations, or to existing «,«,.,*;„». +^ ,u - 

treaties, and that, on their forwarding hither well authen- upon to caution gentlemen as to their account- 
ticated evidence of the same, proper proceedings will be ability to their constituents, bir, I seek no shelter 
adopted for their relief."— Doc. 102, p. 217. behind the " safe vote" system. I am here as an 

Now, Mr. Chairman, I believe that I have jj independent Representative of a just and honor- 
fully proved, from the documentary archives of j able constituency, sworn to the discharge of my 
the State Departments, from your statutes, and duties according to my unbiased judgment. This 
from your treaties— 1. That France had, prior to j I shall do on the present, as on all other occa 
1800, committed large spoliations upon the com- 
merce of American citizens. 2. That this Gov- 
ernment, according to the express agreement of 
Mr. Jefferson, undertook to represent these claims, 
and to urge the payment of them. 3. That, in 
1800, for the purpose of accommodating all the 
differences between the two Governments, some 
of which arose out of treaty indemnities, this 
Government entered into a convention with France, 
by which these claims for spoliations were aban- 
doned and relinquished. Is not this too plain for 
cavil , and does not the statement pronounce its own 
judgment ? And in what an attitude does it place 
us? Having used the claims of our citizens in I 
governmental arrangements for purposes bene- \ 
ficial to the whole people, if we now refuse to make 
them reparation, we shall stand in direct and pal- 
pable opposition to that provision of the Consti- \ 
tution which declares that " private property shall 
not be taken for public use without just compen- 
sation." The oath which I took, as a member of 
Congress, binds me to vote a joist compensation 
to the claimants. 



sions, regarding only the right, without a thought 
of the consequences here or elsewhere. 



RESOLUTIONS OF ALABAMA. 

STATE OF ALABAMA— JOINT MEMORIAL. 

Whereas, it appears by a report of the Committee on 
Foreign Affairs of the Congress of the United States, made 
on the 4th day of April, 1840, that John Marrast, jr., for 
John Marrast and A. J. Cotton, administrator of John 
Smith, deceased, citizens of the State of Alabama, have 
petitioned the Congress of the United States on account of 
French spoliations, committed prior to 1800 — 

Be it therefore resolved by the Senate and House of Rep- 
resentatives of the State of Alabama in General Assembly 
convened, That our Senators and Representatives in the 
Congress of the United [States] be requested to use their 
exertions to secure for our citizens all the compensation 
for French spoliations to which they may be entitled, or 
which by treaty with France, or otherwise, may be consti- 
tutionally provided and secured. 

Resolved further, That his Excellency the Governor of 
this State be, and he is hereby, requested to transmit to 
our Senators and Representatives in Congress a copy of 
these resolutions. 

J. S. G. COTTRELL, President Senate. 
R. A. BAKER, Speaker of the House of Reps. 
Approved January 9, 1841. 



4 



SPEECHES 



MR. PHILLIPS, OF ALABAMA. 



ON THE BILL 



PRESCRIBING THE MANNER OF APPOINTING THE ASSISTANT 
SECRETARY OF THE TREASURY. 



DELIVERED 



IN THE HOUSE OP REPRESENTATIVES, DEC. 15, AND 23, 1853. 



WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1853. 



REMARKS. 



Thursday, December 15, 1853. 

The joint resolution from the Senate, prescribing | 
the manner of appointing the Assistant Secre- 
tary of the Treasury, coming up on a question of 
reference, was read, as follows: 
"An act prescribing the manner of appointing the Assistant 
Secretary of the Treasury. 

"Be it enacted by the Senate and House of Representa- j 
lives of the United States of America in Congress assem- \ 
bled, That the Assistant Secretary of the Treasury author- 
ized by the thirteenth section of the £ act to establish the j 
Home Department, and to provide for the Treasury Depart- 
ment an Assistant Secretary of the Treasury and a Com- 
missioner of Customs, ' approved the third of March, one j 
thousand eight hundred and forty-nine, be, from and after \ 
the passage of this act, appointed by the President of the 
United States, by and with the advice and consent of the j 
Senate." 

Mr. PHILLIPS said: 

I would not, Mr. Speaker, offer any remarks j 
upon the subject before the House, which has al- I 
ready received so much debate, if it were not that j 
I differ from the able and learned gentlemen who j 
have preceded me with regard to the constitution- j 
ality of this measure. I profess to be a strict con- 
structionist. I probably owe my seat here to my 
attachment to that political creed. But, at the ! 
same time, we must be careful that we do not j 
forego or pretermit the clear constitutional powers 
which are vested by the Constitution in the Fed- 
eral Government. 

The gentleman from Virginia, [Mr. Bayly,] and 
the gentleman on my left from Tennessee, [Mr. 
Stanton,] have both assumed that it was a posi- 
tion which scarcely could be controverted, that 
the Constitution requires the appointment by the 
President, with the advice and consent of the , 
Senate, of the officer in question; and they placed 
their judgment upon the ground that the appoint- j 
ment of no other than inferior officers could, by 
the provisions of that instrument, be vested in 
other hands. Now, to what does that term " in- 
ferior" relate? is the question before the House. 
Why, sir, it relates — and can have no distinct defi- 
nition but in that relation — to the first; to wit, the j 
Secretary himself. Once determine that the First | 
Assistant Secretary is not an inferior officer, and, 
I ask, where is the significance of the term " in- 1 
ferior " to rest? Who shall say that a Second 
Assistant Secretary is an inferior officer ? If we i 
depart from the plain construction, which, to my 1 



] mind, is so evident, that inferiority has reference 
I only to the first — to wit, the heads of Departments 
I — we are thrown upon a sea of construction by 
; which a constitutional rule of one character may 
| be established to-day, and a constitutional rule of 
another character to-morrow. 

Look to the cases specified in the Constitution 
I where the concurrent action of the Senate is re- 
i quired. They are " ambassadors, other public 
ministers and consuls, judges of the Supreme 
' Court" — offices the superiority of which is at once 
recognized. " But the Congress may by law vest 
the appointment of such inferior officers, as they 
thinkj proper hi the President alone, in the courts 
of law, or in the heads of Departments." 
\ The incumbent holds under a law vesting his 
! appointment in the Secretary of the Treasury, the 
head of his Department. He is subordinate or " in- 
ferior" to the Secretary, and is already within the 
constitutional limitation, however important his 
duties may be. 

Mr. BAYLY, of Virginia. I would ask the 
gentleman whether the collectors at various points 
are not subordinate to the heads of Departments, 
j and whether his construction would not bring 
them under the head of inferior officers ? And let 
me also ask him whether, from the foundation of 
the Government, the President has not been re- 
quired to make appointments of those officers, 
and if they have not been confirmed by the Senate ? 

Mr. PHILLIPS. I will say, in reply to the 
gentleman from Virginia, that a collector is the 
"first" in his office. He has no superintendent 
there. He has the sole control of it, and there- 
fore comes within the definition assigned to the 
Constitution. 

So much, sir, for the constitutionality of this 
measure. Now let me say a few words with ref- 
erence to the expediency of the measure which is 
before the House. It is proposed to take the ap- 
pointment of the First Assistant Secretary of the 
Treasury from the Secretary, and to give it to the 
President; and this is to be done upon grounds 
which denounce the past action of the Govern- 
ment and the past action of these officers, as illegal 
and unconstitutional. I, for one, am not prepared 
1 lightly to admit premises which lead to such a 
; conclusion. 

Sir, I am opposed to making this change . 



4 



There is certainly one reason in favor of it, and 
that is, that if other officers of the same charac- 
ter are appointed by the President, it would be 
more consistent that all should be appointed by 
him. But in consideration of all the questions 
involved in it, I am opposed to the change. If 
any gentleman of more experience in the House 
than myself, would bring in a bill to give all the 
appointments of the various Departments to the 
heads of those Departments, I would give it my 
hearty vote and concurrence, and for the reason 
that it would promote the unity of the Department 
as connected with the responsibility of it. When 
the President appoints a chief of one of these 
Departments, I should be for permitting the Sec- 
retary to assume the responsibility of appointing 
such subordinates as would, in his opinion, per- 
form the duties assigned them in the very best 
manner. I would place the responsibility upon 
him, and not throw it upon the President and the 
Senate; and 1 would hold him responsible to the 
country for the faithful discharge of the duties of 
the offices which are placed under his supervision. 
For these reasons I shall vote against the bill now 
before the House. 

Friday, December 23, 1853. 
Mr. Bayly and other gentlemen having ad- 
dressed the committee on the subject, 
Mr. PHILLIPS said: 

Mr. Chairman: Thequestion before the commit- 
tee is on the reference of the President's message; 
yet the latitude of debate allowed by our rules has 
already involved not only the propriety of that 
message, the institution of slavery, the conduct of 
Captain Ingraham in the Koszta affair, but also a 
discussion which commenced in the House, and is 
still pending there, as to the constitutionality of 
the law of 1849, vesting in the Secretary of the 
Treasury the appointment of his Assistant Secre- 
tary. What more, sir, will yet be involved, upon 
what unknown seas we are yet to be launched, no 
one can now say — not even, I presume, that most 
notorious and celebrated personage, the "oldest 
inhabitant." 

I cannot say, Mr. Chairman, that I was sur- 
prised at the sentiments which fell from the gen- 
tleman from New York, [Mr. Smith,] and the 
gentleman from Ohio, [Mr. Giddings.] Not that 
they were not startling, but because they were not 
new. The stereotyped sentimentalities which is- 
sue from the lips of Abolitionists have fallen upon 
the public ear too often to create at this day the 
least emotion of surprise. 

But, sir, as I looked around these Halls, and 
beheld the representatives of thirty-one States 
congregated here to legislate, under that glorious 
Constitution which at once recognizes their indi- 
viduality and secures their union, and to maintain 
which each Representative has solemnly sworn, 
I confess, sir, that I was startled, that in such a 
place, where the very decorations of the temple 
declared the sanctity of the States, and the glory 
of their fraternal union — before an auditory, one 
half of whom were the immediate Representatives 
of institutions into which domestic servitude had 
struck its roots far and deep — the gentleman had 
the boldness to utter sentiments so derogatory to 
the Constitution, so destructive to the Union, and 
so insulting to his fellow Representatives. 



Sir, the institutions of the South have been as- 
sailed by the bitterest invective and most unmeas- 
ured denunciation; and the Representatives of the 
South have listened in calm decorum, without com- 
plaint or reply. Nay, more, sir; they have been 
called upon to listen to a miserable attempt to 
falsify history, and pervert the plainest provisions 
of the Constitution, in order to sustain gentlemen 
in a palpable violation of their constitutional oath. 

I do not propose, Mr. Chairman, to discuss 
with the gentleman the propriety or the morality 
of those institutions which are mine by inherit- 
ance, and which are secured tome by the Federal 
compact. It is not, sir, because I fear such dis- 
cussion, but because 1 will not aid in the long- 
cherished desire of establishing this Hall as a cen- 
tral amphitheater, from which the gentleman and 
his confederates might speed their fiery arrows 
over every portion of this country, and again sub- 
ject the land to civil discord. They have not the 
right to challenge such discussion here, and, so far 
as I am concerned, they shall not have it. If the 
Constitution should prove inadequate to the pro- 
tection of those institutions it was designed to 
secure, I feel strong in the confidence that those 
institutions have inherent power enough to protect 
themselves; for, sir, if there is any truth to be 
drawn from the history of population, it is, that a 
people who, within a few years, without the aid 
of immigration , increase their numbers from a mere 
handful to upwards of three millions — a number 
greater than the whole population of the colonies 
at the time they threw off the British yoke, and 
successfully resisted British power — must be in 
the enjoyment of the comforts and advantages of 
life most suitable to their condition. 

I trust, Mr. Chairman, that the abstinence 
which I have imposed upon myself will be ap- 
proved by the Representatives of the southern 
i States, and that they will permit this challenge to 
discussion to pass unnoticed and unaccepted; and 
S that if again we are to be called upon to listen to 
! the vile abuse and vituperation of institutions 
: which it is our duty to protect on this floor, let us be 
| content in the reflection, that although the gentle- 
I men may have attained some notoriety in the coun- 
i try as sentimentalists, yet, in the judgment of the 
i nation, they have never risen to the dignity of 
; statesmen. 

The gentleman from New York, upon another 
j subject, it seems to me, indulged in a very carping 
spirit in reference to Mr. Marcy 's celebrated ex- 
I position of the Koszta difficulty. As I understood 
j him, he complained that Mr. Marcy didjiot go 
j far enough in vindicating Koszta 's right to citi- 
I zenship, under the municipal law and the la*v 6f 
nations, but should have claimed it by virtue of 
the law of reason and of justice. Now, sir, it is 
certainly a novel idea to be broached upon this 
floor that citizenship can be acquired by any other 
means than by law. Citizenship is the creature 
oflaw — of municipal law. It has its creation there; 
and it lives only under the conditions and limita- 
I tions which that law imposes. 

1 do not stand here to vindicate the argument 
! of Secretary Marcy. That argument is self-vin- 
dicated in the eyes of the most eminent jurists 
! and in the hearts of our people. If this is the 
! force of the gentleman's opposition, I tell him that 
! his attacks will pass by the Secretary "as the idle 
; wind, which he regards not." The sword of 



5 



Ingraham and the pen of Marcy are destined to 
a joint immortality. 

Passing thus briefly over these topics, I come to 
the question which has been removed by thegentle- 
man from Virginia [Mr. Bayly] fi'om the House 
where its discussion commenced, and where, I 
think, it would have been most appropriately ter- 
minated. With the indulgence of the committee, I 
will devote a few remarks to its consideration; for, 
involving, as it does, the true construction of the 
Constitution of the United States, it becomes at 
once of the highest dignity and importance. 

The gentleman from Virginia, in the opening of 
his remarks yesterday, told us of a learned French 
philosopher, who knew everything except how to 
dance, and yet it was on the point where he was 
most deficient that he was most vain; and he sur- 
mised that probably the Frenchman's case was 
his own; and that he might be most deficient in 
constitutional reading, while this was the precise 
subject on which he most prided himself. 

I say to the gentleman, that he need be under 
no such apprehension; and though I am satisfied 
that in this argument he is laboring under a great 
error, yet his reputation as a constitutional lawyer 
will remain untarnished; for Jupiter himself, it is 
said, sometimes nods, and perhaps the gentleman 
may yet be frank enough to acknowledge that for 
once he has been caught napping. [Laughter.] 

The Constitution, as it will be recollected, re- 
quires the concurring action of the Senate in the 
appointment of " Ambassadors, other public 
ministers, and consuls, judges of the Supreme 
Court, and all other officers of the United States, 
whose appointments are not herein provided for, 
and which shall be established by law; but the 
Congress may by law vest the appointment of 
such inferior officers as they think proper in the 
President alone, in the courts of law, or in the 
heads of Departments." 

The gentleman from Ohio [Mr. Disney] ex- 
presses great surprise at the construction which I 
have given to the term " inferior officers," and 
while he strenuously insists that the act of 1849, 
which vests the appointment of Assistant Secre- 
tary in the head of the Treasury Department, is 
unconstitutional, null and void, because such as- 
sistant is not an " inferior officer;" he at the same 
time admits that no general rule can be laid down, 
but that each case must be adjudged as it arises, 
and according to its peculiar character and circum- 
stances. 

Now, this admission shows most conclusively 
that the question, Who are " inferior officers?" 
would, in the view of the gentleman, be a ques- 
tion resting rather on legislative administration 
than on constitutional power. For the Constitu- 
tion operates as law, and its rule must be certain 
and invariable. 

If I understood the gentleman from Virginia 
aright, he considered it republican and democratic 
to call in the Senate as much as possible in the 
disposition of the appointments. Now, sir, as I 
read Mr. Madison, he looked upon the division 
and distribution of powers, and the separate and in- 
dependent existence of the several departments, as 
most conducive to the preservation of liberty, and 
the proper administration of republican govern- 
ment. It is for the legislative department to create 
the office, assign its duties, limit its duration, and 
regulate the compensation. To the Executive De- 1 



partment, charged with the faithful execution of 
the laws in theory, belongs the appointment of the 
officer. So far from Mr. Madisoh'fl favoring an 
enlargement of the senatorial concurrence, his lan- 
guage, in the debates of 1789, was, " I never did 
conceive, that so far as the Constitution gave one 
branch of the legislature an agency in this busi- 
ness, that, by any means, it was one of its most 
| meritorious parts; but, so far as it has gone, I 
confess I would be as unwilling to abridge the 
power of that body as to enlarge it." — Llcyd'3 
Debates. 

Coming now to the specific question, whether the 
act of 1849, vesting the appointment of the Assis- 
tant Secretary in the head of the Department, is 
constitutional, being an "inferior officer " in the 
sense of the Constitution, the gentleman from 
Virginia finds himself driven to the alternative of 
maintaining, that whether the officer is inferior or 
superior, depends upon the character of the duties as- 
signed to him. On the other hand, I maintain that 
" inferior," in the constitutional sense, is a mere 
question of relation, and signifies that the officer 
is subordinate or secondary. In common parlance, 
the definition of the gentleman from Virginia 
may be correct, but in constitutional construction 
it can have no foundation whatever. 

The Constitution uses the word " inferior " but 
three times; first, in the clause already quoted, and 
twice in the first section of the third article, which 
declares that " the judicial power of the United 
States shall be vested in one Supreme Court, and 
in such inferior courts as Congress may from time 
to time ordain and establish. The judges, both 
of the Supreme and inferior courts, shall hold 
their offices during good behavior," &c. Now, 
sir, can the gentleman contend that the Constitu- 
tion had any reference to the character and dignity 
of the duties to be performed, when it used the 
word " inferior " as applicable to the courts which 
were to be established by law ? or is it not clear 
that the term is but one of relation or comparison, 
indicating that they were only subordinate orsecond- 
ary to the Supreme Court? 

Mr. BAYLY, (interrupting.) If the gentleman 
will allow me one word, I will take but a mo- 
ment of his time. Yesterday I allowed myself 
to be thrown off from some remarks in reply to 
those advanced by the gentleman from Alabama, 
and I did not cover the whole ground of my argu- 
ment. I meant to have used that very clause of 
the Constitution in a different sense from which 
the gentleman uses it. The clause to which he 
j refers says, " that they shall establish courts infe- 
rior to the Supreme Court." They are inferior 
to the Supreme Court. Let me ask the gentle- 
man a question here. Can Congress vest the ap- 
| pointment of the district judge in the Supreme 
Court, without the concurrence of the Senate? 

Mr. PHILLIPS. Thegentleman has not quoted 
the language of the Constitution correctly, though 
he has stated its meaning. But I insist that the 
clause shows the true meaning of the term infe- 
rior. Will the gentleman tell me that the courts 
of the United States, in which the great body of 
j original jurisdiction is vested — courts which over 
the whole of our vast country are now adminis- 
tering laws which involve the property, liberty, 
! and lives of the citizens of the United States, are 
" inferior " in any other sense than that of reta- 
il tion or comparison ? Surely he will not. 



6 



In reply to the question of the gentleman, I will 
say that 1 recognize no constitutional difficulty in 
vesting the appointment of district judge in the 
judges of the Supreme Court. It would address 
itself to the National Legislature as a question of 
propriety and not of power. 

Mr. BAYLY, (interrupting.) Will the gentle- 
man allow me to ask him a question? If my in- 
terruptions are at all disagreeable, I will not make 
them; but I should like to ask a single question. 

Mr. PHILLIPS. Of course 1 cannot get on 
as smoothly with my argument if frequently in- 
terrupted; but still I cannot refuse to yield for a 
pertinent question. 

Mr. BAYLY. Can the appointment of clerk 
be vested in the Supreme Court? 

Mr. PHILLIPS. Undoubtedly it can. Sir, it 
appears to me I have fully established that, so far 
as the constitutional significance of the term " in- 
ferior" can be gathered from the Constitution 
itself, that it has and can have no reference to the 
character of the duty; for if there is one Depart- 
ment of this Government which, in the estimation 
of our people, is held in more reverence than 
others, it is the judicial; and yet the courts which 
exercise the great body of this original jurisdic- 
tion are " inferior courts," in the express terms of 
the Constitution. 

Having construed the Constitution by the Con- 
stitution itself, I propose now to construe it by 
contemporaneous history. I think the gentleman 
from Virginia will admit that the great men who 
constructed the ship, and afterwards, on the floor 
of Congress, aided to launch her, should best 
know of what material she was composed. 

The first session of Congress, as is well known, 
was composed of many of the most eminent men, 
who had taken leading parts in the Federal Con- 
vention. Among their first acts we find laws 
creating the <£ Department of Foreign Affairs," 
"the Department of War," and the "Treasury 
Department. " They bear date, respectively, July 
27, August 7, and September 2, 1789. 

By the second section of the first of these acts, 
it is provided : 

C£ That there shall be in said Department an inferior officer 
to be appointed by said principal officer, (Secretary of the 
Department of Foreign Affairs,) to be employed therein as 
he shall deem proper, and to be called the chief clerk in 
the Department of Foreign Affairs, and who, whenever 
the said principal officer shall be removed from office, 
shall have charge and custody," &c. 

Section two of the second act contains a sim- 
ilar provision, declaring that there shall be, in 
said Department, an inferior officer , to be appointed 
by said principal officer, &c, and with the same 
powers as already quoted. 

By the first section of the act establishing the 
Treasury Department, it is provided that the 
officers of said Department shall be " a Secretary 
of the Treasury, to be deemed the head of the 
Department, a Comptroller, an Auditor, a Treas- 
urer, a Register, and an Assistant Secretary of the 
Treasury, which assistant shall be appointed by the 
said Secretary." 

Now, it will be seen that the chief clerk in 
these Departments is expressly termed an "in- 
ferior officer," whose appointment is vested in 
the "principal officer" — the head of the Depart- 
ment; and if the chief clerk is " inferior," surely 
all others are. And in the last act we find this 
chief clerk, whose appointment is given to the 



head, denominated an "Assistant Secretary of the 
Treasury." The act leaving the other officers to 
be appointed, under the constitutional provision, 
by the President, with the advice and consent of 
the Senate. 

Now, sir, if there were any doubt arising upon 
the face of the Constitution, it must surely be 
dispelled by the light which is reflected from the 
history of this legislation. Who shall say that 
the act of 1849, which vests in the Secretary the 
appointment of an Assistant Secretary, is viola- 
tive of the Constitution, when the act of 1789, 
clothed with the sanction of the great men who 
framed it, and who were yet warm from the debate 
upon this very constitutional point, makes pre- 
cisely the same provisions? 

Following up this same line of argument, in 
demonstrating that all others than the chiefs of 
Departments were considered as "inferiors," we 
find the act making compensation to these officers, 
entitled " An act for establishing the salaries of 
the Executive officers of the Government, with 
their assistants and clerks." 

With these lights before us, let us now examine, 
with some particularity, the act of 1849, which is 
so vehemently denounced on this floor as uncon- 
stitutional and void. This act created the new 
Executive Department, called the " Department 
of the Interior," to which was transferred many 
of the duties which had been formerly assigned 
to the other Departments. By the eleventh sec- 
tion of this act, in conformity with the legislation 
establishing the old Departments, the Secretary of 
the Interior was "authorized to appoint a chief 
clerk of his Department." The thirteenth section, 
containing the objectionable clause, I quote entire: 

"That an officer shall be appointed in the Treasury De- 
partment, by the Secretary of the Treasury, to be called the 
'Assistant Secretary of the Treasury,' whose salary shall 
be ,f.3,000 per annum, payable in same manner as that of 
the Secretary of the Treasury; who shall examine all let- 
ters, contracts, and warrants prepared for the signature of 
the Secretary rif the Treasury, and who shall perform all 
other duties in the office of the Secretary of the Treas- 
ury now performed by some of his clerks, as may b« 
devolved on him by the Secretary of the Treasury ; who 
shall also appoint a clerk, at a salary of $1,700 per annum, 
who shall perform such duties as a clerk in the Treasury 
Department, in aid of said Assistant Secretary, as may be 
assigned to him by the Secretary of the Treasury." 

Now, sir, admitting that I am wrong in my 
construction, and that the view of the gentleman 
is correct, let us try this section by his own 
touchstone. What are the important duties? — 
what the high functions this officer is to perform, 
which exclude him from the constitutional power 
of Congress? " He is to examine all letters, con- 
tracts, and warrants prepared for the signature of 
the Secretary," and to perform any other clerkly 
duty which may be assigned to him. Does not 
every chief clerk, in every department of business, 
private as v/ell as public, perform the same duties, 
and exercise the same vigi3ance? If the provis- 
ions of this section had vested the Assistant Sec- 
retary with any power or discretion to be exercised 
independent of the head of the Department — if 
they had constituted him a check in the transactions 
of the principal, and established a direct responsi- 
bility to the Government, there would have been 
some show of argument that the magnitude and 
importance of the duties excluded him from being 
considered, in the constitutional sense, an " infe- 
rior officer." But, in the absence of all power, 



1 



and of all discretion, a mere ministerial officer, 
seeing through the eye of his principal, hearing ! 
through his ear, thinking with his mind, and exe- j 
cuting by his hand, how, in candor, can the j 
gentleman assert, even upon the constitutional i 
rule which he has himself laid down, that he is J 
not within the legislative action of this Govern- 
ment? To me, sir, it seems most manifest, that 1 
as the whole power of judgment and control is in j 
the head of the Department, his assistant is no 
more entitled to be classed, under the Constitu- j 
tion, as a superior officer than the merest clerk j 
who ever placed pen behind his ear in an attor- j 
ney's office. 

It will have been seen that the act of 1849 uses | 
precisely the language of the act of 1789 in de- 1 
nominating this officer; but itdiffers only in this, that 
while the act of 1789 is silent as to his duties, the 
act of 1849 prescribes them. But there is no es- ! 
sential difference, as these prescribed duties are all j 
necessarily implied in the very nature of the ap- 
pointment itself; there is no duty mentioned which 
does not pertain to the character of the office; and \ 
in this respect the silence of the old act is much 
more expressive than the enumeration of the new 
one. 

Now, sir, I will call the gentleman's attention 
to some of the difficulties in which his position , 
has involved him. If the character of the duty to | 
be performed is the test of constitutionality, what 
will he do with those acts of Congress which 
create the. office without setting out in terms the 
duties to be performed, such as is the case with 
this very office in the act of 1789? Will the gen- j 
tleman say that he will imply the duty from the; 
designation of the office, and upon this implica- j 
tion will pronounce his judgment? Where will! 
the gentleman find a standard before 1789 by which ' 
he could specify what were the usual duties which i 
attached to such an officer ? These two acts stand i 
upon the same footing, and must be governed by 
the same rule; and yet neither of the three gentle- 
men who have assailed the act of 1849, the chair- 1 
man of the Judiciary, [Mr. Stanton,] the chair- j 
man of the Public Lands, [Mr. Disney,] nor my 
opponent, the chairman of Foreign Affairs, [Mr. 
Bayly,] has as yet, and I prophesy will not here- 
after, deny the constitutionality of the act of 1789. | 

Again, sir, if the construction depends upon the | 
dignity of the duty to be performed, I ask the 
gentleman, inasmuch as there is no prescribed 
rule fixed in the Constitution, who is to judge of j 
the question? Surely Congress, and Congress 
alone. And if the Congress of 1849 considered 
the duties assigned to the Assistant Secretary not ; 
of that class which would constitute him a superior 
in a constitutional sense, what right have we to I 
declare that they have been guilty of an usurpa- j 
tion ? We may decide for ourselves, when a sim- j 
ilar question arises, but this right of judgment 
shows that the very same authority existed in J 
the Congress of 1849. 

Leaving this subject as it rests upon argument, 
let us turn to the question as presented by the 
learned gentleman, [Mr. Bayly,] on authority. 

We are first referred to the debates on the Con- j 
stitution, and to an isolated expression of Mr. j 
Madison, when it was proposed to add to the 
clause, as it originally was reported: 

" That the Congress may, by law, vest the appointment of | 
such inferior officers as it may think proper in the Presi- I 



dent alone, in the courts of law, or in the heads of Depart- 
ments. 

" Mr. Sherman seconded the motion. 

" Mr. Madison said, the provision did not go far enough 
if it were necessary at all. Superior officers, below the 
heads of Departments, ought, in some cases, to have the 
appointment of the lesser officers. 

"Mr. Governed* Morris. There is no necessity; 
blank commissions can be sent." — Madison papers, vol. 5, 
jj. 550. 

Now, the expression of Mr. Madison is strenu- 
ously relied on, to show that it does not neces- 
sarily follow, that all below the heads of Depart- 
ments were " inferior," as he speaks of" superior 
officers" standing in this relation. But it will 
be observed that the point to which Mr. Madison 
was addressing himself did not involve the con- 
sideration of the question at issue; and that he 
evidently uses the word " superior," not to desig- 
nate the constitutional standing of any particular 
class of officers, but as a word of mere relation to 
the " lesser officers:" as a chief clerk in a Depart- 
ment would be considered as" superior to the 
second, third, &c. We may take the whole scale 
of officers from the highest to the lowest, and he 
who stands on the second round of the ladder is 
above or superior to him who stands on the first. 
In no other sense than this did Mr. Madison in- 
tend to be understood. 

The gentleman next relies, with a good deal of 
confidence, on the case of ex parte Duncan N. 
Hennen, 13 Peters' Reports. And without reading 
or stating the facts of the case, or presenting the 
point that was in issue before the court, con- 
tented himself with reading from the decision a 
few detached sentences. In the argument of a 
legal, or constitutional question, a more dangerous 
practice than this cannot be imagined. Now, 
the gentleman must well know, that to ascertain 
the law of a case, we must first find what was 
the precise point presented to the court. You 
cannot take up the decisions of judges, which 
often in argument and illustration involve matters 
not in issue before them, and then fasten on some 
loose expression as an adjudication. The opinion 
of the court upon the facts of the particular case, 
and the questions arising out of them, is a judg- 
ment, and all matters of opinion, outside of this, 
are the mere obita dicta of the judge who delivers 
the opinion. 

The facts of the case are briefly as follows: 
Duncan Hennen had been appointed clerk of the 
district court of Louisiana, in 1834. In 1837, a 
new district judge gave the appointment to John 
Winthrop, as it is alleged, from mere personal 
motives of friendship, and not upon any ground of 
complaint against said Hennen. The case was 
presented on a petition for a mandamus, and the 
points to be adjudicated were, whether the district 
judge had the right of removal, and whether this 
power could be exercised in a case where he ad- 
mitted that the removal was made without any 
adequate cause? The supreme court decided that 
Congress had vested the appointment of the clerk 
in the district court, that the power of removal 
v/as attendant upon the power of appointment; 
and that the supreme court had no control or 
jurisdiction over the subject. 

In delivering the decision of the court, Justice 
Thompson says: " The appointment of clerks of 
courts properly belongs to the courts of law;' and 
that a clerk is one of the inferior officers contem- 
plated by this provision in the Constitution cannot 



8 



be questioned."— (Page 253.) And again: "These 
clerks fall under that class of inferior officers, the 
appointment of which the Constitution authorizes 
Congress to vest in the head of the Department. " — 
(Page 260.) This last quotation is the one so 
much relied upon by the gentleman from Virginia. 
For what purpose? For the very extraordinary 
one of showing that clerks are the only inferior 
officers referred to in the Constitution. If any- 
thing was wanting to show the error of such an 
argument, beyond the mere statement of it, it is 
found in the first quotation, which declares that 
the "clerk is one of the inferior officers," &c. 
Besides, the gentleman has, over and over again, 
throughout his argument, admitted the existence 
of other inferior officers than clerks; and it is too 
late even to attempt the limitation which he 
erroneously ascribes to this decision. 

I think 1 may say with some confidence, that 
the gentleman's authorities have entirely failed 
him, and that the question as heretofore discussed 
in the House between us, rests where it did. 

But now, sir, 1 proceed one step further. Sup- 
pose the law under which the Secretary has ap- 

fointed Mr. Washington, to be unconstitutional: 
deny that we can by any action of this Con- 
gress, constitutionally require the President to 
send his nomination to the Senate. I deny that 
the President or Congress, or both combined, can 
reach that appointment. The appointment was 
made by the Secretary, and the removal must 
come from the same source of power. Congress, 
it is true, may repeal the law and abolish the 
office, or they may direct judicial proceedings 
to try the right of the incumbent. This very 
point was the one most ably argued at the bar, 
and decided by the court, in the case of ex parte 
Hennen, already referred to. I am speaking 
now of constitutional principles and legal rules. 
I do not say w 7 hat the President or Secretary 
ought to do, or would do in certain contingencies, 
but what they would be bound to do. 

The joint resolution from the Senate, now the 
subject of this discussion, has been advocated here 
upon the ground that the appointment of Mr. 
Washington was unconstitutional, and that by 
its provisions, the President would be compelled 
to send his name, or some other, to the Senate for 
its concurrent action. I have already said that 
should we pass this joint resolution, it would be, 
in my humble judgment, without any legal obliga- 
tion. It has surprised me very much, that while 
I cannot hesitate to believe, from the assertions 
and arguments of those who press the measure on 
this floor, that it was the specific design to reach 
the case of the present incumbent, that so grave 
and learned a body as the Senate should have sent 



us an act whose terms fall so far short of its intent. 
The words of the joint resolution in reference to 
this appointment are, "from and after the passage 
of this act." What effect, let me ask, Mr. Chair- 
man, can this have upon an appointment made 
months or years ago? The appointment is in the 
past. — the resolution deals entirely with the future. 

If, therefore, we were to pass the joint resolu- 
tion, it would not legally produce the result it was 
drafted for. The on dits of the day, the street 
conversation of members, the statements on this 
floor, might be used, should we pass the act, to 
produce influences and excite feelings in certain 
quarters; but, I repeat, that as these things form 
no part of the act itself, but its construction is to 
be found only in a just interpretation of its terms, 
it would not legally enforce the condition for 
which it was adopted. 

In conclusion, therefore, as I am firmly con- 
vinced that the act of 1849, as well as the act of 
1789, its prototype, is constitutional, and that it 
is expedient as well as constitutional that the ap- 
pointment should rest where it is, I shall vote 
against the passage of this resolution. To gratify 
friends who may think it safer to offer an 
amendment inserting the word " hereafter," I 
will vote for it, though considering it unneces- 
sary. 

To the gentleman from Virginia [Mr. Batly] 
I freely accord the utmost sincerity, when he de- 
clares, in his very warm advocacy of this measure, 
that he is not influenced in his course by any feel- 
ing of hostility, either to the President, the Secre- 
tary of the Treasury, or the incumbent whose 
appointment has produced this discussion. There 
is something, sir, in the frank bearing of the gen- 
tleman which has inspired me with entire confi- 
dence in what he says. But, sir, there seems to 
me something extraordinary in this transaction. 
The evident haste in which the resolution is drawn, 
the unusual zeal with which it is pressed, the 
strange arguments upon which it is rested, the 
unusual means proposed to be resorted to, all 
seem to indicate that there is something more de- 
signed than is written out on the face of this title 
paper. 

As, sir, I have the fullest confidence in this 
Administration — a confidence which has grown 
with the progress of events since its inauguration — 
as I have the most implicit reliance in the incor- 
ruptible integrity of the chief of the Treasury 
Department, I am gratified that the result to which 
1 have come places me honestly in the position 
where I may freely interpose the shield of my vote 
to protect these high functionaries from the impu- 
tation this resolution may be designed to cast 
upon them. 



SPEECHES 



OF 



ME. BAYLY, OF VIRGINIA, 



ON THE BILL 



PROVIDING FOR THE APPOINTMENT OF THE ASSISTANT 
SECRETARY OF THE TREASURY: 



DELIVERED 



IN THE HOUSE OF REPRESENTATIVES, DEC. 22 AND 23, 1853. 



WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1854. 



REMARKS. 



The House, as in Committee of the Whole on the 

state of the Union, having under consideration 

the reference of the President's message to the 

appropriate committees, 

Mr. BAYLY, of Virginia, said: 

Mr. Chairman: I have something to say in 
reply to the latter part of the gentleman's [Mr. 
Wright's] argument. Considering the character 
of the speech which was made yesterday by the 
gentleman from Ohio, [Mr. Giddings,] I could not 
be diverted from a reply to that speech, and be 
led off into an argument of the question which my 
friend from Pennsylvania [Mr. Wright] alluded 
to in the latter part of his speech, were it not that 
I consider the subject to which the gentleman from 
Ohio [Mr. Giddings] refers, a matter of such 
grave importance, that it would be better that it 
should be brought before this House upon a report 
and bill from a committee, when the subject could 
be discussed with reference to the subject itself, 
without entangling it in the loose suggestions which 
have been thrown out in this debate. 

I undertook the other day, when the bill from 
the Senate came down here, which required that 
the Assistant Secretary of the Treasury should 
be appointed by the President, and undergo the 
supervision of the Senate, to express the opinion 
that the Constitution requires that an officer of 
that grade should undergo that supervision. 

1 was a little ridiculed for my remarks, just as I 
expected; for the House will recollect that 1 stated 
that whenever there was a point made in respect 
to the Constitution of the United States, especially 
if made by a gentleman from the State of Vir- 
ginia, this House was disposed to ridicule it. 
There was a French philosopher of great dis- 
tinction — I have forgotten his name — who never 
felt complimented at all if any laudatory reference 
was made to his writings. He could not dance, 
but was always exceedingly gratified if any com- 
pliment was paid to his dancing. In other words, 
it was the precise capacity in which he was most 
deficient of which he was most vain; and that may 
be my case. Now, above all things, I should like 
to be considered as understanding the Constitu- 
tion; and it may be that I am like the French 
writer — most ambitious of applause for that I do 
worst. But I cannot help it. When I do make 
a point upon the Constitution, and gentlemen 



. treat it lightly, I do feel a little sensitive. Like 

! the Frenchman, perhaps, lam going to vindicate 
my dancing:- [Laughter.] 

The language of the Constitution of the United 
States to my mind is very plain: 

" The President shall have power, by and with the advice 
and consent of the Senate, to make treaties, provided two 
thirds of the Senators present concur; and he shall nom- 
inate, and, by and with the advice and consent of the Sen- 
ate, shall appoint embassadors, other public ministers and 
consuls, judges of the Supreme Court, and all other offi- 
cers of the United States whose appointments are not herein 
otherwise provided for, and which shall be established by 
law ; but the Congress may by law vest the appointment of 
such inferior officers as they think proper in the President 
alone, in the courts of law, or in the heads of Depart- 
ments." 

In the draught of the Constitution under consid- 
eration in the convention, at the time I refer to, 
there was only the first part of the provision 
that conferred upon the President " the right to 
nominate, and, by and with the advice and consent 
of the Senate, to appoint embassadors and other 
public ministers, and judges of the Supreme Court, 
and all other officers whose appointments are not herein 
otherioise provided for, and which shall be established by 
law." If the Constitution had stopped here, there 
would have been no difficulty. We all know who 
are the officers whose appointments are otherwise 
I provided for by the Constitution. There are but 
J a few of them. First, the President of the United 
i States, the Vice President, and the members of 
j Congress. The mode of their appointment is by 
election, and their mode of appointment is other- 
wise provided for. Secondly, "The House of 
Representatives shall choose their Speaker and their 
other officers, and they shall have the sole power of 
impeachment." That is a clause of the Constitu- 
tion which seems of late to have been forgotten; 
but it is in the Constitution: " The House of Rep- 
resentatives shall choose their Speaker and their 
other officers." It seems with respect to that 
matter, however, that there are others than the 
House itself to be consulted. 

" The Vice President of the United States shall be Presi- 
dent of the Senate, but shall have no vote unless they be 
equally divided. 

" The Senate shall choose their other officers, and also a 
President pro tempore, in the absence of the Vice Presi- 
dent, or when he shall exercise the office of President of 
the United States." 

That is one of those provisions which seem to 



4 



have been forgotten, also, of late, but it is in the 
Constitution. With these exceptions, there are 
no other officers whose appointment is otherwise 
provided for in the Constitution, than in this 
clause. 

If the clause in the Constitution had remained 
as it originally was, as I have already said, there 
could have been no difficulty. But the last sen- 
tence of it, as it now stands, was added, and let 
us see with what view. 

When the question of the mode of appointment 
came under the review of the convention which 
framed the Constitution of the United States, there 
were a diversity of views in respect to requiring 
the concurrence of the Senate. There were three 
distinct parties in that convention in this respect. 
One party desired provision to be made for an 
Executive council, to whom should be referred ap 
pointments. Afterwards it was proposed that the 
Senate should act as an Executive council, and 
should appoint all the officers, from the judges of 
the Supreme Court, down. There was another 
party which desired this power to be conferred 
upon the President exclusively. There was also 
a third party in this respect, wKich dcoircd the 
concurrence of the President and Senate — who 
insisted that the direct responsibility of the nomi- 
nation should devolve upon one man, and security 
be insured by requiring the concurrence of many. 

Prominent among the members of that conven- 
tion, who desired the concurrence of the Presi- 
dent and Senate, were Gouverneur Morris and 
James Madison, the two men who, I undertake 
to say, of all others, are entitled to be regarded as 
the framers of the Constitution. Madison was 
the most active among its constructors, and Mor- 
ris put it into form. Its phraseology and form 
are principally the work of the latter gentleman 
I say, therefore, that these two gentlemen, of all 
others, may be supposed to have understood what 
the convention meant in the language used by it. 
If there are any two gentlemen who, more than 
others, may be regarded as authoritative expo- 
nents of the meaning of the convention in forming 
that instrument, they are Governeur Morris and 
James Madison. Well, sir, when the subject of 
appointments was under consideration, Dr. Frank- 
lin said: 

" We seem too much to fear cabals in appointments by 
a number, and to have too much confidence in those of 
single persons. Experience showed that caprice, the 
intrigues of favorites and mistresses, were nevertheless the 
means most prevalent in monarchies. Among instances of 
abuse in such modes of appointment, he mentioned the 
many bad governors appointed in Great Britain for the 
colonies. He thought a council would not only be a check 
upon a bad President, but a relief to a good one.^ 

Mr. Madison said: 

"That as the second branch (the Senate) was very differ- 
ently constituted when the appointment of judges was for- 
merly referred to it, and was now to be composed of equal 
votes from all the States, the principle of compromise 
which had prevailed in other instances, required in this, 
(the appointments,) that there should be a concurrence of 
two authorities, in one of which the people, in the other, 
the States, should be repre«ented." 

The President being referred to as representing 
the nation at large, and the Senate as representing 
the States. 

He went upon the idea that in making appoint- 
ments there should be a concurrent assent of 
these two elements — the people and the States — as 
represented by the President and the Senate. 

Well, sir, subsequent to that, when the provis- 



ion in respect to appointing officers came up again, 
Mr. Wilson, of Pennsylvania, objected to allow- 
ing the Senate any participation in the confirma- 
tion or rejection of any officers. He thought that 
responsibility would be destroyed, in a manner, 
by allowing such an agent as the Senate to partici- 
pate in it. Mr. Pinckney, of South Carolina, was 
opposed to uniting the concurrence of the Senate 
with the appointment or confirmation of any other 
officers than embassadors. But what did Gover- 
neur Morris say ? He said that " as the President 
was to nominate, there would be responsibility, 
and as the Senate was to concur, there would be 
security." These were the views, thus briefly 
and pointedly expressed, which prevailed. They 
were, that there should be a responsibility in re- 
quiring the President of the United States to nom- 
inate, and a security in requiring the concurrence 
of the Senate. 

But it was argued — I cannot in my hour stop 
to quote, though I shall take the liberty of doing 
so if I should find it necessary to have my speech 
reported at length — that as the clause first stood — 
conferring power on the President of the United 

States to nominate, and requiring the Senate's 

action to concur in regard to all appointments) — 
there would be so many officers to be appointed 
throughout the United States that the very multi- 
plicity of them would make it necessary for the 
Senate to be a perpetual body — that it would re- 
quire them to be constantly in session to review 
the numerous nominations which, in the course of 
the business of a country like this, would be con- 
stantly required. Mr. King replied to this ob- 
jection, and said : " He differed from those who 
thought the Senate would set perpetually. He 
did not suppose all the minute officers were to be 
appointed by the Senate, or any other original 
source, but by the higher officers of the Depart- 
ments to which they belong." To carry out 
that idea, it was moved, at a later day, by Gov- 
erneur Morris — and here I beg leave to call atten- 
tion to the fact, that the gentleman upon whose 
motion the second clause of the section under 
consideration was added was the very man who 
insisted upon the concurrent action of the Pres- 
ident and Senate in all appointments, so as to 
secure the responsibility of the President's nomi- 
nation, and the "security" of the Senate's re- 
view, yielding, to some extent, to the objection 
made, and adopting Rufus King's view — to amend 
by adding the exception to the rule, as my friend 
from Ohio [Mr. Disney] argued it was the other 
day. 

" But the Congress may by law vest the appointment of 
such inferior officers as they think proper in the President 
alone, in the courts of law, or the heads of Departments." 

Thus we have clearly before us the views of 
the framers of the Constitution in respect to the 
appointment of officers. Their first wish was to 
have the responsibility of the nominating by one 
man, and the security of the review of many in 
every case. But it was urged that this would keep 
the Senate in perpetual session. To obviate this, 
the clause was added. By no fair rule of con- 
struction can you extend the remedy any further 
than is necessary to meet the mischief designed 
to be obviated by it. You are bound to enlarge 
the rule, and restrict the exception to it, as far as 
is practicable, without encountering the mischief 
designed to be avoided by the exception. 



5 



The gentleman from Alabama, [Mr. Phillips,] 
in his argument the other day, maintained that 
there were but two degrees of comparison — heads 
and inferiors. He maintained that every officer 
who is not a head of Department, is an inferior 
officer. So did not think Mr. Madison, and the 
framers of the Constitution. They thought there 
were three degrees of comparison — heads of De- 
partments, superior officers, and inferior officers. 
And here, I beg leave to say, is an issue between 
the gentleman and myself. He insists that there 
are but two degrees of comparison — heads of De- 
partments and inferior officers. 1 insist that there 
are at least three — heads of Departments, superior 
officers, and inferior officers. 1 beg leave to call 
attention to what occurred in the convention, at 
the time this provision was adopted, and the 
committee will mark that this is an interpretation 
of the Constitution before it was adopted, and is 
much more valuable, in consequence of the fact, 
because it shows the meaning which those who 
framed the Constitution attached to their own 
work. Governeur Morris moved the following: 

"But Congress may, bylaw, vest the appointment of 
such inferior officers as they think proper, in the President 
alone, in the courts of law, or in the heads of Departments. 

"Mr. Sherman seconueu me motion. 

"Mr. Madison. It does not go far enough, if it be ne- 
cessary at all. Superior officers below the heads of Depart- 
ments, ought, in some cases, to have the appointment of 
lesser officers." 

Mr. Madison thought that there were not only 
heads of Departments, but superior officers below 
the heads of Departments, who themselves ought 
to have the appointment of those still inferior to 
them. 

Governeur Morris, in speaking of this addition, 
says: " It is unnecessary; blank commissions can 
be issued." What does he mean by that? Why, 
that it was not worth while to provide that su- 
perior officers, below the heads of Departments — 
those in the second degree — should appoint their 
inferiors, because blank commissions could be 
sent down to those officers, who would fill them 
up with the names of their subordinates. Well, 
sir, a vote was taken upon that provision, and it 
was lost upon an equal division. Mr. Madison 
then goes on in his report to say: 

" The motion being lost by an equal division of votes, it 
was urged that it should be put a second time, some such 
provision being too necessary to be omitted ; and on a second 
question, it was agreed to nem. con." 

Mr. Madison and the convention contemplated 
three degrees — heads of Departments, superior of- 
ficers and inferior officers. Yet the motion to con- 
fide the appointment of this latter class on the first 
was lost on an equal division, thus showing the 
anxiety of the convention to require the concur- 
rence of the Senate in the appointment of the most 
"minute" officers, to use Mr. King's expression. 

But Mr. Madison says that some such provis- 
ion, being too necessary to be omitted, was put a 
second time, and carried nem. con. Why was it 
too necessary to be omitted ? It is obvious enough. 
It was seen that if all of the inferior officers 
throughout the United States had to undergo the 
supervision of the Senate, it would become a per- 
petual body, without securing a corresponding 
benefit. This was so obvious in respect to the 
minor appointments, that Governeur Morris and 
Mr. Madison, both of whom had insisted, first, 
upon the responsibility of the appointment by a 
single individual, the President, and secondly, 



upon the security of the Senate's confirmation, 
relaxed and gave up this inferior class of ap- 
pointments. 

Now, Mr. Chairman, I think I have established 
that the convention required, as I have said over 
and over again, and which I dislike to repeat, 
first, the responsibility of the President's nomina- 
tion; and secondly, the security of the Senate's 
confirmation in all cases except in those of inferu/r 
officers; and the debate shows that by inferior, 
officers they did not mean superior officers. They 
did not mean that, because a man was not the 
head of a department, he was necessarily an 
inferior officer. Inferior, in this respect, does not 
relate to the fact of subordination. It does not 
relate to the question whether a man is above 
him, but simply to the character of the duty to 
be performed. A friend of mine suggested to me, 
in conversation, that clerks were not officers at all; 
that they had no discretion. He insisted that if 
an Assistant Secretary is not to be regarded as 
an inferior officer, then there are no persons to 
answer that description. I beg leave wholly to 
differ from my friend in his suggestion. Biack- 
stone defines an office thus: 

u A n offio<> hem been defined to be a right to exercise a 
public or private employment, and to take the fees and 

i emoluments thereunto belonging, whether public, as that of 

I magistrate, or private, as that of bailiff or receiver." 

I want to know whether clerks do not exercise 
a public employment, and whether they do not 

' take the fees of their offices ? With due respect to 
Blackstone — who, when I was studying law, 
saved me a vast deal of trouble, by affording me 
more agreeable though less profound reading than 

j Coke — I must say there is a better definition of an 
officer in an old English case, which I have before 

! me: 

" It is the rule that where one man lias to do with another 
man's affairs, against his will and without his leave, that is 
an office, and he who is in it is an officer." 

Now, I undertake to say that this definition is 
precisely the best definition of an officer that I 
ever saw. The man who has to do with another 
man's affairs, without his consent, is an officer. 
Now I want to know if one of the watchmen in 
the Treasury Department is not an officer, under 
that definition, which, as I said, is the best defini- 
tion I have seen ? Under this definition all these 
j clerks are officers — every one of them. In the 
I departments the salaries diminish from eight thou- 
sand dollars given to the heads of the Departments 
down to $3,000 to an assistant, $1,700 to a prin- 
cipal clerk, and $500 to a watchman. I ask my 
friend from Alabama, [Mr. Phillips,] who says ha 
owes his seat upon this floor to his being a strict 
constructionist, how in that scale of descending 
salaries he reconciles it that there are but two 
degrees of comparisons, the one being the head, and 
all the rest inferior ? That is the rule in racing, but I 
believe it is the rule nowhere else. The horse 
which comes in sixty yards ahead in a mile race, 
j is ahead, the rest are nowhere. There is no better 
or worse between them. In the old English record 
of racing, it is " Eclipse first," the rest nowhere. 
The rest are distanced, and cannot be placed on 
I the record. My friend from Alabama [Mr. Phil- 
j lips] would say — "the heads of the Department 
first," the rest nowhere. That is not my under- 
: standing of the Constitution. There are three 
J degrees of comparison — the heads of Depart- 
' ments, the superior, and the inferior officers. 



6 



Well, sir, let us see what some of " the fathers 
of the Republic" have said upon this matter — if | 
my friend from Missouri [Mr. Benton] will ex- 
cuse me for plagarism from him, (it is so com- 
moil now-a-days, that it is not regarded as a penal 
offense. ) Let us see what the fathers of the Re- || 
public said upon this matter. 

In the first organization of our Government, a j 
law was passed — in 1789 — organizing the Depart- | 
ments. On the 11th of September, 17S9, the Con- | 
gress of the United States enacted that there should 
be allowed to the officers of the Departments 1 
the following salaries, payable quarterly: To the 
Secretaries in the Departments, £3,500. Then, 
after enumerating all of the superior officers be- 
low the heads of Departments, the law goes on to ; 
say: 

"The heads of the three Departments above mentioned, 
shall appoint such clerks therein respectively, as they shall 
find necessary, and the salaries of said clerks respectively 
shall not exceed the sum of $500." 

The salaries of the heads of Departments are 
provided for; the salaries of all the superior offi- 
cers, below the heads of Departments, are pro- 
viued lor; ana men in one sweeping clause, " the 
heads of the Departments above men tinned, shall N 
appoint such clerks therein respectively as they 
shall find necessary, with salaries not exceeding: 
$500. 

It so happens that in a case which came before 
the Supreme Court, that court expressed an opin- ; 
ion upon this question of who are these inferior 
officers that may not undergo the scrutiny of the 
Senate. In the case ex parte Duncan N. Hennen, I 
the Supreme Court of the United States, after re- 
ferring to the law establishing the Departments 
already referred to, used the following language: ! 

" In all of these Departments, power is given to the Sec- 
retary to appoint all necessary clerks," &c, &.c. 

The Supreme Court says: 

" These clerks fall under that class of inferior officers the ] 
appointment of which the Constitution authorizes Congress 
to vest in the heads of the Departments." 

Now, who composed this court that declared 
that these clerks, authorized in a batch without 
name or designation, with the inferior salary of; 
five hundred dollars, these mere copyists, were the 
inferior officers contemplated by the Constitution? 
Roger B.Taney, Joseph Story, Smith Thomp- 
son, John McLean, Henry Baldwin, James M. 
Wayne, Philip Barbour, John Catron, and John 
McKinley. Who are they ? Roger B. Taney had 
been at the head of the Treasury Department, and 
exhibited there, as he has every where, a degree of 
ability and scrutiny, and an accuracy of judgment, 
that, I undertake to say, has been rarely surpassed 
by any man who has lived in this Republic. He not 
only was a lawyer, but he had been at the head of 
the Treasury Department, where this question 
might have come under his review. Joseph Story 
had been a distinguished member of this House, 
and was not only distinguished as a lawyer, but as 
a statesman. Smith Thompson, who delivered 
the unanimous opinion of the court, had been 
Secretary of the Navy; so, as in Taney's case, 
we have his opinion as a lawyer, and his opinion 
as a man who had been at the head of one of the 
Departments of the Government. We have the 
opinions, also, to the same point, of John McLean, 
who had also been a head of a Department. 
James M. Wayne, John McKinley, Henry 



Baldwin, and Philip P. Barbour, all of whom had 
been distinguished members of Congress, and the 
latter Speaker of this House. And as this is 
somewhat a political question, their opinion is 
more to be noticed in consequence of their former 
connection with political life, than if they were 
mere lawyers. 

I know I shall be told by those who will follow 
me — for I know my friend from Alabama, [Mr. 
Phillips,] to be a man of industry and learning, 
and when men of that character are to follow 
me, I know everything will be said which can be 
said — I say I shall be told, that this very act", cre- 
ating the Treasury Department, contains a provis- 
ion authorizing the Secretary of the Treasury to 
appoint an assistant. That is true; but his duties 
were very different and inferior to those assigned 
now to the Assistant Secretary; and yet a short 
time afterwards, in May, 1792, the Congress of the 
United States abolished the office of Assistant 
Secretary of the Treasury, and substituted a Com- 
missioner of the Revenue; and the law subjected 
this officer thus substituted to the supervision of 
the Senate in his appointment. 1 claim that this, 
the subsequent action of Congress, in reference 

tr> this maitcr, annuls the first decision, and be- 

comes a pregnant authority on my side of the 
question. 

I am so hoarse that I can only speak with the 
greatest difficulty; but I must say a word or two 
more. Mr. Chairman, my friend from Pennsyl- 
vania [Mr. Wright] referred to the fact that Mr. 
Walker, in his report to Congress recommending 
the establishment of the Interior Department, sug- 
gested that the appointment of the Assistant Sec- 
retary of the Treasury should be conferred on the 
head of that Department, and that the law was 
passed in the very language of his recom- 
mendation. It is so. But while I have no dis- 
paragement to make of Mr. Walker, I beg to 
say, that supposing I am wrong (and I only con- 
cede it for the purpose of argument) in believing 
that, by the Constitution of the United States, the 
appointment of such an officer, with such duties 
as Assistant Secretary of the Treasury, could not 
be conferred upon the Secretary of the Treasury 
alone; I say, supposing I am wrong in that, yet, 
notwithstanding the high legal authority of Mr. 
Walker, another part of that law will settle the 
question of his infallibility. That law not only 
authorizes the Secretary of the Treasury to ap- 
point the Assistant Secretary of the Treasury, 
without referring the appointment to the Senate 
for confirmation, but it also authorizes the assist- 
ant himself to appoint a clerk, at a salary of 
Si, 700 a year — this is "piling Pelion upon Ossa," 
in disregarding the Constitution. First, authoriz- 
ing; the Secretary alone to appoint an Assistant 
Secretary, which I maintain he had no right to do, 
and then giving that assistant the power to ap- 
point a clerk under him. 

The Constitution allows that, by law, the ap- 
pointment of inferior officers may be conferred 
upon the President alone, and the heads of depart- 
ments, and courts of law. But does it allow that 
inferior officers themselves may appoint officers 
still inferior to them ? Why , sir, if Mr. Walker's 
authority is to be invoked, I say he must have 
regarded this Assistant Secretary of the Treasury 
as the head of a Department, because unless he is 
the head of a Department, the President of the 



United States, or a court of i w t he Congress !', think, that the Constitution contemplated that 
of the United States had no aut^ r j t y t0 confer 'I such an officer should be nominated by the Presi- 
upon him the power to appoint any ^y. But Mr. jl dent, and submitted to the Senate. We so pro- 
Walker tripped in this matter. If ^ asa i s tant vided. 

was a head, then his appointment rm, t g0 t0 tfte j Sir, I am tired of this eternal arraigning of gentle- 
Senate; if an inferior, then he canno, appoint. Ij men, whenever they act on their own convictions, 
His own letter shows that he did not look^on the | for being in opposition to the Administration. It 
Assistant Secretary of the Treasury, whorn^ewas 1 has been rung in my ears ever since I have been in 
recommending should be authorized by lay a s s Washington — "the President's policy" — " sup- 
an inferior officer. He contemplated a supVior j port of the Administration" — " opposition to the 
officer. He wished provision made for an offi^r I Administration" — until it has occurred to me that 
scarcely inferior to the Secretary himself — or* there is nothing engaging the attention of mem- 
with a high salary, great talent, and, of course, 1 ! bers of Congress except finding out the President's 
high duties. His language is: ll vishes, either to conform to them or to thwart 

"Having transferred the laborious duties enumerated 



from the Secretary of the Treasury, Congress should au- 
thorize him to appoint an Assistant Secretary, who should 
be a man of great talent and experience, with a salary not 
less than $3,000 a year, who should examine all letters, 
contracts, and warrants prepared for the signature of the 
Secretary, and perform such other duties not requiring the 
signature of the Secretary as might conveniently be de- 
volved upon him by the Department. To maintain the 
unity and efficiency of the system, he should be appointed 
by the Secretary, and subject to his dictation." 

The gentleman from Illinois [Mr. Wentworth] 
undertook to say that this movement was a "lick" 
at the President of the United States and the Ad- 
ministration. So such of us as believed tne Uon- 
stitution required a concurrence of the Senate in 
appointing officers of this sort, are not to be re- 
garded as friends of the Administration. I would 
beg just here to say to the gentleman from Illinois, 
that he evidently has made a mistake in this mat- 
ter, and one of a character not usual with him. 



tivem. 

Sir, a celebrated English writer, in speaking of 
Rorne, at a time when the spirit of liberty had fled, 
and the spirit of faction had taken its place, says: 
"Caesar had his party, and Antony had his party — 
the Commonwealth had none. " 1 shall not pursue 
that idea. I am tired of this thing. Why, sir, 
when I arrived in Washington with my family, I 
had not registered my name before a gentleman 
took me by the button-hole and asked me " Who 

are you for fnr Spoalrar >'» Woll, I toM him who 

I was for, and the occupant of the chair [Mr. 
UrrJ must excuse me for saying that it was not 
him. Well, the gentleman said at once, "Are 
you going to put yourself in opposition to the 
Administration and the President's policy ? They 
are for the gentleman from South Carolina, and 
so are the Softs, and the South Carolina peo- 
ple." My reply was, "The devil they are!" 
I am the champion of the President on this point, jj [Laughter.] Well, sir, I went and registered 
and not himself. I came here to vindicate his jj my name, and immediately afterwards somebody 
right to nominate so important an officer as the | asked me what I thought of a distinguished gen- 
Assistant Secretary of the Treasury. J tleman of Ohio, [Mr. Disney,] who was spoken 
I beg leave to tell the gentleman from Illinois, j of for the office of Speaker. I said that I thought 
[Mr. Wentworth] — who has a good deal of j well of him, as a man of talent and ability. The 
keen sagacity in finding the President's side — that [j reply was, " Why, do you know that he is sup- 
in this particular case he has made a mistake. He j | ported by the Hards of New York, and that if 
has accused such of us here as are really sustaining | you vote for him it will be regarded as opposition 
the constitutional rights of the President, of making j J to the Administration ? " I simply said, "Is it 
war upon the Administration. Sir, I am upon j possible ! " That was the kind of entertainment 
the President's side on this question. Well, sir, j that greeted me on my arrival in Washington, 
the gentleman from Illinois — by what authority I h Everything was "the policy" and "wishes of 
do not precisely understand — undertook to arraign j the Administration." Well, then, somebody 
gentlemen who contend for the rights of the Pres- , asked me who I was for for Clerk; and if I knew 
ident; and me, I suppose, as the chief of offend- j that the Administration had the election of Colonel 
ers. It so happened (innocently on my part) I { Forney particularly at heart; and that all those 
that I was the one who made this point. A Sen- jl who did not support Colonel Forney would be 
ator, a personal friend of mine, came down here j! regarded as making war on the Administration? 
and told me there was a bill in the Senate pro- 1| I replied again, "Is it possible!" About 
viding for the mode of paying the Senators, and Jj Speaker, Clerk, everything, it was, "If you do 
begged me to look out for it, and give it a helping this you make war upon the Administration; " 
hand when it came before the House. I pro- j j ** If you do that it will be very acceptable to the 
raised to doit. I am always glad to accommo- j Administration." Why, Mr. Chairman, I was 
date a friend in a matter of that sort. I not accustomed to that sort of thing even in Wash- 
I was on the look-out for the Senate bills. Thus Jl ington, although God knows I have been here a 
my attention was called to this one. The question j great deal longer than I ought to have been, as far 
presented by it was one which I had not elabo- j as my personal interests are concerned. I have 
rately examined; but it was one upon which I had ! ! been here during five distinct Administrations, 
an opinion, and I made the point that the Consti- jj without ever having been before a nominating 
tution contemplated the confirmation by the Senate jj convention in my life. I was never nominated for* 
of officers of the grade of the Assistant Secretary I any office in my life. But I never bolted in my 
of the Treasury. ij own person, and ran against the candidate of my 
The question was not new to me. At the last i party. I was not accustomed to this sort of thing. 
Congress it was recommended that there should i Well, sir, a Clerk was elected; he turned out a 
bean Assistant Secretary of State. As Chair- constituent of mine — a good Democrat, whose 
man of the Committee on Foreign Affairs, it came ji father was a Democrat; who belongs to a class of 
under my jurisdiction. I then thought, as I now II Democrats known and understood in Virginia. 



8 



thank the comr ttee ^ or * ts courtesy in allowing 
me to submit ' ew remarks in reply to the gentle- 
man from A vbama t Mr - Phillips.] 

I be°- to d y t0 tne committee in the beginning, 
that ther 1S nothing in the world that gives me 



Colonel Parker was turned out of the office of! 
Librarian. I did not want him turned out. I 
thought about it, and I thought that the Constitu- 
don of the United States contemplated that the 1 
House of Representatives, in electing its officers, 

might be permitted to elect its own Librarian j! more piasure than to argue a question with a 

the man who is to get books for us, keep our ' gentler an who presents his views in the manner 
books in order and wait upon us; and wishing to < the p-ntleman from Alabama has done. There 
reinstate Colonel Parker, who had been turned ' war a fairness in his statement of the arguments of 
out, I thought I would take the chance of an elec- hi r opponents, that exhibited a confidence in the 
tion by the House itself, and see whether they | correctness of his views and his positions, which 
would not " proscribe proscription." 'made it unnecessary for him to shrink from a fair 



And, sir, I was told that it" was a stab at the 
Administration to claim that the House migK 
elect its own Librarian. [Laughter.] I confes^ I 



argument, and attempt to get advantage in it by 
misstating the points at issue. He and 1 under- 
stand each other, perfectly. There is no quibbling 



submitted the resolution "for the election of Jiat jj about what one says, or the other said. We have 
officer, because Mr. Parker was a constituent of ; both looked at the question, and we both know 

! precisely what it is. He stated the case correctly, 
! when he said that I maintain the question of infe- 
I riority in this case, in my view, depended upon 
! the character of the duties to be performed — in 
i his view, upon the fact of there being a superior 
j in official position. That is the issue distinctly 
| presented. He maintains that if the officer has a 
superior, then he is an " inferior." I maintain 



mine. Otherwise I would not have done it: for I 
am not in the habit of meddling in other people's 
affairs. ° e V 

But it was said that I aimed a stab at the Ad- 
ministration ! I beg leave to tell the gentleman 
from Illinois, [Mr. Wentworth,] and I do not 
speak without authority, that the President of the 
United States does noi sy mptulilze in «ll this. I 



dispute the authority of thegentleman from Illinois I that, in view of this clause of the Constitution, the 
to speak by authority on these points. I deny he jj question of inferiority depends upon the character 
has a commission. He has no commission; and he !| of the duties to be performed. I repeat, that is 



shall not be accredited. He is an usurper. [Laugh- 
ter.] He assumes a power which has not been 
conferred upon him. But I do not care, for one, 
whether he has that power or not. The points I 
have made are before this committee, and before 
the country. If I have not satisfied the commit- 
tee that I am right on the question of constitutional 



the issue; and to it I desire to address myself. 

And first, I wish to refer to the precedents 
which the gentleman has quoted, and which I 
should have quoted myself yesterday, if I had not, 
under this miserable, straight-jacket hour-rule, felt 
that I was cramped, and had not room enough to 
breathe freely. He has referred to the laws estab- 



law, I have at least said enough to show there is ;j lishing the various Departments of the Govern- 
sufficient in the argument to justify me in enter- I] ment; and he says that in all those laws the 
taining the opinion I have expressed, without |j chief clerk is denominated an "inferior officer," 
the imputation being cast upon me of a design to || and his appointment conferred upon the principal 
make the point merely for the embarrassment of officer. That is so; but it proves nothing against 
the Administration. I thank God my connection I me in the issue between the gentleman and myself, 
with the Democratic party is not so recent and \ \ unless he can show that the duties of the clerk 
dubious that I must compound for a want of j! thus referred to are of as high a grade as those of 
fidelity to its principles by a loud profession of J the Assistant Secretary of the Treasury. What 



friendship for the Administration, 

I had designed to have gone further into this 
matter. 

Mr. EWING. Will the gentleman yield me 
the floor for a moment? 

The CHAIRMAN. The gentleman's time has 
expired . 

Mr. BAYLY. I am glad of it. 

December 23, 1853. 

Mr. BAYLY rose and said : 

I am as reluctant as any other member of this 
House to obtrude myself unnecessarily upon its 
attention, but I believe that the law of Parliament 
is precisely as the Chair has decided it; and that 
is, that the Chair oughtinot to have let me hold the 



ii are the duties which the law defines as the duties 
jj of that principal clerk? Not a word giving him 
j| authority of any sort. He is to be employed as 
;| the Secretary "shall deem proper;" and in the 
j j event of the removal of the Secretary, or a vacancy 
from any other cause, he is to take care of the 
, records. With that single exception, his duty is 
I to do the bidding of the Secretary. Truly, such an 
' office was properly designated an inferior office. 
It is true, that in case of the death, resignation, 
or removal of the Secretary, he is to take care of 
the records, but he is given no authority over 
them. He is merely a keeper of them. He is 
made, as it were, a watchman. He is to see that 
the records, as left by the removed Secretary, are 
in the condition in which he left them when his 
successor comes in. He cannot touch a thing, 



floor if another member was competing for it who ;j and, I think, there is great propriety in providing 

that this principal clerk, who, by law, has no 
; authority of any sort, this appointee and friend 
of the Secretary, shall be made the custodian, in 
| case of a vacancy, of the records. I think this 



had not spoken upon the subject under consider 
ation; but as there was nobody else competing for 
it in this case, I had a right to the floor to move an 
amendment. I think the Chair has decided rightly. 



But finding so much difficulty made by the gen- j authority against the gentleman; for 1 cannot re- 
tleman from Alabama, [Mr. Hocstok,] I had deter- [ concile, with any proper use of language, the 
mined to say nothing, if there was an indisposition j 



on the part of the committee to hear me. But the 
committee have shown no such indisposition, and I 



indiscriminate application of the term " inferior 
officer" to such an officer as this, and to such a 
one as the Assistant Secretary of the Treasury. 



9 



And I beg leave to say, that, in my opinion, 
Congress has been guilty of no such misuse of 
terms; for, in no instance that I can find, have 
they applied the application "inferior officer" to 
officers of the grade of the Assistant Secretary of 
the Treasury. Their use of it in the case of such 
an officer as I have been speaking of, and the 
omission to use it in the case of officers of the 
grade of the Assistant Secretary of the Treasury, 
shows that they thought it applicable in the one 
case, but not in the other. 

The gentleman, however, in his very able and 
lucid argument, referred to the fact that an Assist- 
ant Secretary of the Treasury was provided for in 
the law of 1789. It is true the officer was called 
the Assistant Secretary of the Treasury, but the 
law defined his duties. We will not stick upon 
the mere designation of an officer; for all along my 
argument has been that it was the character of the 
duties which defined the grade of the officer. If that 
be so, it is immaterial by what name he is called. 
What had that Assistant Secretary to do? He 
was, so far as duties were concerned, just in the 
position of a principal clerk in the other Depart- 
ments; and, like them, he had no specific duty 
assigned him, exeppt. in case of a vacancy, and 
then he took care of the records. He had no dis- 
cretion of any sort, and was, in fact, nothing, as 
far as his duty to take care of the records is con- 
cerned, but a watchman. And, as inferior as his 
duties were, at the next Congress the office was 
abolished, and a Commissioner of the Revenue 
substituted, and the law provided for his appoint- 
ment by the President and Senate. 

The gentleman refers to the clause of the Con- 
stitution which empowers Congress to "constitute 
tribunals inferior to the Supreme Court." And 
he argues that that clause fixes the meaning 
of the word inferior, and shows that there are but 
two classes — the principal officer and inferiors. 
Mr. Chairman, I think the authority is against the 
gentleman. In that clause the standard of com- 
parison is fixed — " inferior to the Supreme Court." 
But in the clause under consideration the standard 
is not, in terms, fixed. The language of the clause 
is not, " Congress may, bylaw, Vest in the Pres- 
ident alone, and heads of Departments, officers 
inferior to them." It seems to me that the varia- 
tion of the form in which the word "inferior" is 
used in the two clauses, shows that the Constitution 
contemplates different standards of comparison. 
The test of inferiority in one clause is relative, and 
in the other positive. In the one, the relation is to 
the Supreme Court, in the other to the character of 
the duties to be performed. If the grade of officers 
did not depend on the character of the duties they 
had to discharge, and the principle were otherwise, 
let us see where it would lead. In official position 
every officer in the United States is inferior to the 
President. He is the Commander-in-Chief of the 
Army and Navy of this Union. There is not a 
man in either the Army or the Navy who is not 
inferior to him under the gentleman's standard. 
Will anybody tell me, with a knowledge of the 
jealousy which prevailed of the military at the 
origin of this Government, that the convention 
which framed the Constitution ever contemplated 
that a servile Congress might confer upon the Pres- 
ident alone the appointment of every officer in the 
Army and Navy ? 

If the gentleman 's construction be right, they are 



all inferior, because there is a superior. I maintain 
that they are not inferior, because the character of 
their duties takes them out of that category. The 
gentleman's construction would put it in the power 
of Congress to confer the appointment of every 
officer in the United States upon the President 
alone, except embassadors, other public ministers 
and consuls, and judges of the Supreme Court. 
And yet, as I showed the other day, when it was 
proposed in the convention which framed the Con- 
stitution, to require the concurrence of the Senate 
only in these cases, it was voted down. Can any- 
thing be more conclusive ? The gentleman's con- 
struction would give the President such an amount 
of patronage in prospect as to enable him, with a 
spoils-seeking Congress, to procure the passage of 
a law conferring the appointment of every officer 
in the United States — with the exception of those 
mentioned, who have no patronage — upon him 
alone; and the law having passed, he would have 
in possession such an amount of patronage as 
would prevent its repeal in any other way than 
by a revolution, either by arms, or by such a one 
as that of 1800; and in the latter case, the repub- 
licans would have more than a monarch's patron- 
age to contend against; and if not successful, with 
these odds against them, we, would have an elect- 
ive monarchy imposed upon us, which, of all mon- 
archies, is the worst, as George Mason thought. 

But, without looking to these extreme results, 
does the Constitution contemplate that Congress 
may, by law, confer the appointment of all of the 
auditors, comptrollers, and all of the accounting 
officers, on the President alone, or the heads of 
Departments, so as to confer on them the whole 
control of the appointment of those officers ? The 
Constitution contemplates a system of checks and 
balances, in the settlement of accounts, of revisal, 
and review, by officers not dependent upon, but 
independent of each other; so much so that a 
comptroller may check even a Secretary, or the 
President himself. The whole theory of our Gov- 
ernment, in all its departments, is one of checks 
and balances — it is of concurrent action by inde- 
pendent officers in the transaction of the business 
of the Departments, and concurrent majorities in 
the enactment of laws. 

I think I have shown, Mr. Chairman, that it is 
the character of the duties to be performed by the 
officer which is the test of his inferiority, and not 
his official position. If I am right in this, let us see 
whether the Assistant Secretary of the Treasury 
is an inferior officer or not, whose appointment can 
be conferred by law on the head of a Depart- 
ment alone. Let us see what are his duties. In 
the language of the law constituting that officer — 

" An officer shall be appointed in the Treasury Depart- 
ment to be called the Assistant Secretary of the Treasury, 
whose salary shall be $3,0d0 per annum, payable in the 
same manner as the Secretary of the Treasury, who shall 
examine all letters, contracts, and warrants, prepared for the 
signature of the Secretary of the Treasury; and who shall 
perform all such other duties in the office of the Secretary, 
now performed by some of his clerks, as may be devolwd 
upon him by the Secretary of the Treasury ; and shall also 
appoint a clerk at a salary of $1,700 per annum, who shall 
perform such duties," &c. 

What, an inferior officer appoint a clerk ? What 
use has he for one? The Constitution of the 
United States says, that it is alone the Presi- 
dent of the United States, the heads of Depart- 
ments, and courts of law, who may, by law, be 
vested with the appointment of inferior officers. 



10 



Yet this law gives to this inferior officer, as my 
learned friend contends he is, the right of appoint- 
ment of an officer still inferior to him. Why, 
gentlemen, is it necessary in the American Con- 
gress to argue, that that officer cannot be an infe- 
rior officer in view of the Constitution, who has 
the right to appoint others under him ? 

Let us look at it a little further than this. What 
is he to do ? I undertake to say, if there exists in 
this Government that vigilance which is the price 
of liberty, that vigilance which is alone the proper 
security against corruption, that the Assistant 
Secretary of the Treasury, more than any other 
officer in the Treasury Department, is the one who 
should not be the mere creation of the Secretary of 
the Treasury, and responsible to him alone. 

He is to examine all contracts, letters, and 
warrants prepared for the signature of the Secre- 
tary of the Treasury, and to perform any other 
duty whatever performed by any clerk in the De- 
partment. Let us look at this. Why is he to 
examine all letters, contracts, and warrants pre- 
pared for the signature of the " Secretary?" " Cui 
bono?" For what purpose is he to examine all 
contracts, letters, and warrants? Is it to relieve the 
Secretary from the examination, and is he to sign 
them upon faith ? or is the assistant to examine 
them as a guard upon the Secretary? It must be 
one or the other. 

There has scarcely been a Republic which has 
preceded us, in which corruption in Government 
contracts, and illegal allowances, has not produced 
a demoralization in the nation that has paved 
the way to ruin. Considering this, ought that 
officer — did the Constitution contemplate that that 
officer — who is either virtually to make all the con- 
tracts, write all the letters, and issue all the war- 
rants which the Secretary is required to sign, or, 
in the other alternative, to supervise everything 
which the Secretary does in those respects — to be 
the mere appointee of the Secretary, and responsi- 
ble to him alone? — to be appointed without the 
concurrence of the Senate, and to be beyond the 
direct control even of the President? 

Mr. PERKINS, of Louisiana, (interrupting.) 
I would ask if the gentleman from Virginia did 
not himself report the resolution as it exists, and 
against which he is now arguing? 

Mr. BAYLY. My friend from Louisiana [Mr. 
Perkins] does not know me as well as he will 
before the end of this Congress, else he would not 
have asked me this question. He would have 
known beforehand that I am not the man to in- 
volve myself in any such a predicament as his ques- 
tion contemplates. I not only did not report the 
bill, but was tooth and nail against it. 

Mr. PERKINS. I am very happy to hear the 
explanation of the gentleman. I sought it from 
one of his colleagues, as I wished to be re- 
lieved from the impression that the gentleman was 
arguing now against what he formerly advocated. 
I am perfectly satisfied with the gentleman's ex- 
planation. 

Mr. BAYLY. I did not report the bill, but 
was opposed to it. I know the whole history of 
the bill creating the Department of the Interior; 
and it is a little piece of history that I will state 
to the House. The Department of the Interior 
would not have been created, in my opinion, if it 
had not been that in the organization of General 
Taylor's Cabinet, there was not room enough for 



a sufficient number of gentlemen who wanted 
places; and I was appealed to here not to oppose 
actively that law, as it was known that I waa 
determined to do. I was reminded that it was 
recommended by a Democratic Secretary, (Mr. 
Walker,) and I was told that if the law did not 
pass there would be no place for a distinguished 
Whig, for whom they desired to make a plaee, 
and to whom it was known I was much attached. 
I was opposed to it, and, of course, yielded to no 
such appeals. The law was passed on the last 
night of Mr. Polk's administration; and I do not 
believe it would have passed at all, had not it have 
been for such appeals to members as the one I 
have referred to. I did not report the bill, but did 
report at the last Congress a provision creating the 
Assistant Secretary of State; or, rather, it came 
under my review, as chairman of the Committee 
on Foreign Affairs. Congress returned, in that 
instance, to what we thought the Constitution re- 
quired of us, and simply said that there should be 
an officer, called the Assistant Secretary of State, 
and it fixed his salary , but said nothing about the 
mode of appointment. We left it to the Consti- 
tution. Of course he has been appointed by the 
President and Senate. 

I listened with much anxiety, but without pain, 
to the first part of the very able argument of my 
friend from Alabama, [Mr. Phillips.] There is a 
wide difference of opinion between the gentleman 
and myself upon a grave question of constitu- 
tional law; yet I listened with very great pleasure 
to his able argument, for it was the argument of 
a jurist; and I am sure that this House was satis- 
fied, when he came to the conclusion of his re- 
marks, that he was a man who, by the power of 
his intellect, will adorn the country which he is des- 
tined so ably to serve. And for that reason, with 
greater pain I heard him say, that an officer of 
this Government has a sort of estate, a vested 
right, in the office he may happen to hold. 

Mr. PHILLIPS. If the gentleman will allow 
me, I think he has misapprehended the point I 
desired to make. What I said was, that when an 
officer had once been appointed under a law of 
Congress, by the head of a Department, he holds 
that office against the power of Congress to re- 
move him, and against the power of the President 
of the United States to remove him. He cannot 
be removed except by the officer who appointed 
him. That is according to my reading of the 
Constitution. 

Mr. BAYLY. I did not misunderstand the gen- 
tleman. The clearness and perspicuity with which 
he states his propositions makes it impossible for 
him to be misunderstood. He says that when 
Congress has authorized the appointment of an 
officer — an inferior officer, as he maintains this to 
be — and conferred the appointment upon the Sec- 
retary that neither Congress nor the President has 
the power to remove him, but that the power vests 
solely in the officer who appointed him. Now, 
sir, let us look at that proposition for a moment. 
The gentleman's language is too plain to be mis- 
understood. He says that neither Congress or 
the President can remove him. I agree with him 
that the President cannot, because the power of 
removal belongs to the power of appointment. 
And if he means that Congress cannot by law 
turn A out of an office and put B in, I also agree 
with him. But if he means that when Congress 



11 



has passed a law creating an office, and providing 
for the mode of filling it, they have not the power 
to pass another law abolishing the office or chang- 
ing the mode of appointment, and in either case 
vacating the office, then I differ from him. 

Mr. PHILLIPS. Oh, no; on the contrary, I 
said, in express terms, that Congress had the 
power to abolish the office, and that that was the 
only way in which they could get rid of the 
officer. 

Mr. BAYLY. I differ with the gentleman. 
Not only has Congress the power to abolish the 
office, and thereby get clear of the incumbent, but, 
in case of officers authorized by law only, they 
may change his tenure of office. 

Mr. PHILLIPS. I admit that. 

Mr. BAYLY. And further still, they may 
change the mode of his appointment at any time; 
and it is in pursuance of that very power that 
this bill is before the House. It is to change the 
mode of appointment of this officer, as we have a 
perfect right to do. The question has been thus 
decided, over and over again, under this Govern- 
ment. In England, I know, the idea exists that 
an officer has a vested right in his office. But 
even in England that is not the law, except with 
reference to those ancient offices existing by im- 
memorial usage; and of that immemorial usage 
the tenure of office forms a part. But even in 
England, in recent offices — those created by stat- 
ute — it has been decided that the tenure, like the 
office itself, depends upon the meaning of the 
statute, nd it can be changed by law at any time. 

The idea has been utterly and always repudiated 
in this country, that an officer created by law has 
any vested interest in his office. You may make 
any change you please, and he has no legal right 
to comp'ain. If additional duties or increased re- 
sponsibilities are imposed upon him, he cannot 
decline either. The question has been decided 
again and again, that if an office is created by law, 
you may by iaw impose as many additional duties 
as you please upon the incumbent, and he is com- 
pelled to perform them or resign his office. When 
an office is created by law you may change the 
tenure or change the mode of appointment. But 
it is not so, I admit, in this respect, when the 
office is created by the Constitution. And I desire 
to call the attention of the Committee to the dis- 
tinction I draw. 

In the case where an office is created by the 
Constitution, and the mode of appointment is 
therein prescribed, his duties defined, and the ten- 
ure fixed, you cannot, by law, change either the 
nature of the office, the mode of appointment, or 
the tenure; but where the office is created by law, 
the very power which creates the office has the 
authority either to change its tenure, to modify its 
duties, or to abolish it altogether. 

Mr. PHILLIPS. Will the gentleman from 
Virginia allow me to ask him another question? 

Mr. BAYLY. With great pleasure. 

Mr. PHILLIPS. Does the gentleman contend 
that if an act of Congress vested an appointment 
in the President, and that the appointment had 
been made, that a subsequent Congress could 
nullify or rescind the appointment, and direct a 
new appointment by a new mode? 

Mr. BAYLY. Unquestionably. That is pre- 
cisely what I maintain; and if it be true that in 
the case where an appointment, authorized by an 



act of Congress, has been made, that the office is 
thereafter beyond its control, then Congress can- 
not repeal an act which it itself had passed. 

And here, allow me to remark, is the origin of 
my opposition to the amendment introducing the 
word "hereafter." That "hereafter" rests — 
and rests only upon the soundness of the views 
presented by the gentleman from Alabama, [Mr. 
Phillips.] If the officer has any vested interest — 
I will not use the word " estate" — then " here- 
after" would be eminently proper, because you 
cannot legislate retrospectively in respect to inter- 
ests. But we have no vested interests in this 
country in offices of any sort, except in those 
offices which are during good behavior, and 
which, by the Constitution, are beyond the pale 
of legislation. I dislike that word "hereafter" as 
an amendment — it is an anti-republican amend- 
ment. There is no propriety in the use of that 
word "hereafter," except upon the supposition 
that this officer has a vested interest in respect to 
which you ought not to legislate retrospectively. 
There is a great anti-republican principle involved 
in that little amendment, "hereafter." If it is 
proper hereafter, why is it not proper now ? There 
can be but one logical answer given to that in- 
quiry, and that is, that this officer has a vested 
interest which you ought not to touch. 

Mr. Chairman, my friend from Alabama, [Mr. 
Phillips] — for, although our acquaintance is very 
recent, I beg that I may be allowed to refer to him 
in that way — did me no more than justice when 
he gave credit to my assertion that in the part I 
had taken in this transaction 1 was not thinking 
of the Assistant Secretary in any way, either in 
regard to his holding his present position, or to 
his rejection. Sir, if I were capable of coming 
here, and, in legislating in the passage of laws, 
suffer myself to be influenced in my conduct as 
an American legislator by personal considera- 
tions, or in giving my vote for the passage of any 
law with the view merely to the' effect such law 
would have upon any individual, instead of the 
effect it was to have on our institutions and the 
country at large, I should feel such a contempt 
for myself that I should be ashamed to look my 
own children in the face. So far as I am concerned, 
I have no hostility to the Assistant Secretary of 
the Treasury, or to the Administration. The 
Assistant Secretary of the Treasury is my friend. 
I have transacted business with him. He is, as 
I said the other day, a most able and efficient offi- 
cer; and if he has not taken the fancy, from my 
independent conduct here as a representative of a 
part of Virginia, that I have been actuated by 
private feelings, and have forgotten the friendship 
I entertain for him, I would advise him, as a 
friend, to counsel his friends not by any " here- 
after " to shield him from the operation, or by 
any other action to prevent, the passage of this 
law. I do not know that he has felt at liberty to 
interfere. I presume he has not; though I know 
nothing on that point. But if he has interfered 
at all, and if he is the man I take him to be, his 
interference has been not to shield himself by any 
"hereafter," or to subject his successors to an 
ordeal from which he himself shrinks. I do not 
know that the Senate is going to reject Mr. 
Washington. 1 do not want them to do it for 
any factious purposes. 

I utterly disclaim any other motive in this whole 



12 



matter than a desire to see proper guards and 
restrictions put upon the appointment of all offi- 
cers, and especially of one who is to stand.in such 
a position as this. I am only anxious that this 
important officer, who is to be in some respects a 
co-equal or a check upon the head of the Depart- 
ment — shall be, not merely a confidential friend of 
the Secretary, but one upon whom the President 
and Administration can depend, and in whom the 
Senate — the checking power of the Government — 
can confide. Talk about opposition to the Admin- 
istration ! Why, sir, what was the ground which 
all of us took in our canvass ? Denunciation of 
Galphinism — denunciation of corrupt contracts, 
and schemes of all sorts. The Whigs were 
accused of favoring these things. It was said that 
their patriotism was like the fellow's in the play, 
who was for war: 

"I sutler to the camp will be, and profit will ensue." 

That is what the Democrats have been saying 
all through the country with regard to the Ga\- 
phinites. 

Now let me refer my friend from Alabama to 
some provisions of law connected with this point. 
He says that assistant clerks are " inferior offi- 
cers," and that the Assistant Secretary of the 
Treasury is one of them. Well now, a law, 
passed in the earlier days of the Government, pro- 
hibited everybody in the Departments from en- 
gaging in business, or contracts, or speculations 
of any sort. It is in these words: 

"That no person appointed to any office instituted by 
this act, shall directly or indirectly be concerned or inter- 
ested in carrying on the business of trade or commerce, or 
be owner in whole or in part of any sea vessel, or purchase 
by himself, or another in trust for him, any public lands, or 
any other public property, or be concerned in the purchase 
or disposal of any public securities of any Slate, or of the 
United States ; or take or apply to his own use any emolu- 
ment or gain for negotiating or transacting any business in 
the said Department, other than what shall be allowed by 
law; and if any person shall offend against the prohibitions 
of this act, he shall be deemed guilty of a high misde- 
meanor, and forfeit to the United States the penalty of 
$3,000 ; and shall, upon conviction, be removed from office, 
and forever thereafter incapable of holding any office under 
the United States." 

That is the law as it was originally passed. 
Subsequently it was repealed as to the clerks, 
except in cases of the funds of the United States, 
or of any State, or in any kind of public prop- 
erty, but as to nobody else. If, then, the Assist- 
ant Secretary of the Treasury, who is to examine 
all contracts, letters, and warrants, and decide 
on them, is a clerk — if my friend from Alabama is 
right in this respect, then there is no legal restric- 
tion on him except in the cases referred to byway 



of exception. He who is to examine and vir- 
tually conclude contracts may be concerned in 
them. 

Opposition to this law is not an Administration 
matter. I deny it until somebody has authority 
so to speak. If it is, it is in opposition to the 
principles on which the last presidential canvass 
was conducted, and to the ground which the Dem- 
ocratic party has always professed to occupy. 

Mr. Chairman, I do not know that I regret any- 
thing so much as the load of labor that a very 
kind friend of mine in the Senate has unintention- 
ally thrown upon me. Here early in the session, 
when I wanted to be studying our foreign affairs, 
as is my duty — the Koszta case, the Amistad 
case, what is going on in respect to Cuba — my 
time has been taken up, innocently, and without 
expectation on my part, in discussing a question 
of the sort now before the committee. I had noth- 
ing to do with the getting up of this bill. It was 
by mere accident that I knew it was here. I had 
not even carefully examined it. It originated in 
the Senate, where it ought to have originated, as 
it is a bill claiming for the Senate its constitutional 
rights, and which this House ought not to reject. 
Here, I beg to say, in conclusion, that my friend's 
criticism on this bill is well taken. To a great 
extent the bill is not drawn correctly, if it confers 
this appointment on the President alone. The 
appointment of this officer ought no more be con- 
ferred on the President than on the Secretary. 

Mr. PHILLIPS. The criticism that I made 
was, that the bill, as it now stands, refers to ap- 
pointments from and after its passage; and ex vi 
termini, would not apply to the appointment 
already made. 

Mr. BAYLY. I am willing to let the law pass 
as it is, and to let the President decide, with great 
confidence as to what his decision will be. I have 
not examined the provisions of the bill carefully. 
I speak only from having heard it read. The 
gentleman from Alabama says that it does not in- 
terfere with the present appointment. If so, 
what becomes of the charge that this is a factious 
attempt to decapitate the Assistant Secretary? 

[Here Mr. B. stopped and read the bill.] 

Pass the Senate bill as it is — it wants no amend- 
ment — I am satisfied; and if it screens Mr. Wash- 
ington from the action of the Senate, I am willing 
to abide by that. 

I regret that I have, at so early a period of the 
session, forced myself so frequently upon the 
attention of the House. It has not been my wish, 
and it has really been a disagreeable necessity; 
indeed, I may almost say, my misfortune. 



I 



I 



i 



The excitement so wide spread and deeply seated in the South arises in a great degree 
From a bousc ol insecurity. While the Shiveholding States maintained an equal power in tin 
.Senate, they could submit to much that was calculated to disturb their peace and inflame tin 



their citizens. 

dmission of California destroyed th 
iV of anti-slavery sentiment" in tin 



)t p 



ting in the election ot a President who, m a greater or lesser degree, is believed by the 
to represent this spirit of hostility. It is well known that these causes have driven in 
the most conservative minds in the South to the conviction that a crisis has arisen in 
they must determine either to abandon the institution of slavery, or take new bonds 
protection. 

When the Constitution was adopted slavery was not so deeply rooted, nor was it lo 
ami defined by a geographical line separating the States into two compact bodies, as it i 
II it bad been, there is but little doubt I bis strictly sectional interest, confined to States 
permanently in a minority, would have been armed with constitutional power to resi 
attempt at aggression from the majority section. 

This principle of self-protection vested in peculiar interests is common in govern] 
arrangements, and is illustrated by our ow n Constitution, in which each of tha exeat iim 
of Government is enabled to profu t itself from the . Cncrqachr 



________ _. — ■ 

^^^^^ 



ight in the acquired territory, ;.'k1 lo do its duty by causing tin 
ive slaves to be faithfully fulfilled— to cease the agitatio i of 
— I — ,^r. .. i,i.,VN iii :riii Itu- ( ■ 'ni.Mdo l iou ujjri r^ i 1 



by the action of this Government." 

The peril in which the Union now stands is extreme. What the South seeks is not 

quillity." It no longer exists, 'is it asking too much that they who suffer the evil may deter- 
mine the remedy? 

^ °Tbis can be elected ^changing thTmode of'c.lectuig^ he Vice President, giving to the 
Representatives of the shareholding States in the House and Senate the right to elect him 
whenever the President elected has received a majority of his votes from the free States, and 
the same right to the (Senators and Representatives from the free States when the President 
elected has received a majority of his votes from the slave States, and requiring the approval 
of (be Vice President to all bills in the same manner and under the same restrictions as is 



now provided tor tlm. approval ol the President. 

The details of this measure to meet all contingencies provided for in the twelfth articl 

the Amendments can be easily adjusted. 

If it be supposed that this additional cog on the wheel of legislation will impede its v 

city, we may find compensation in the fact that it will work more steadily. It is from 

much and not too little legislation danger is to be apprehended. 

This, with an amendment, placing bevond change the basis of representation now seer 

to the South, would, I believe, lead to a restoration of that harmonv without which the ei 

interests of the country must wither and die. 

P. PHILLIPS. 



REMARKS 



OF 



HON. P. PHILLIPS, OF ALABAMA, 



ON 



THE MEXICAN TREATY BILL, 



IN 



REPLY TO HON. THOMAS H.BENTON, OF MISSOURI, 



t 



IN THE HOUSE OF REPRESENTATIVES, JUNE 27, 1854, 



f 



WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1854. 



THE MEXICAN TREATY. 



The House being in the Committee of the Whole 
on the state of the Union — 
Mr. PHILLIPS said: 

Mr. Chairman: If any apology were necessary 
for claiming the attention of the committee to the 
few remarks I design now to submit to it, it would 
be found in the fact, that the opinions I entertain 
as to the treaty-making power are wholly antag- 
onistical to those which have been so ardently 
urged by the gentleman from Missouri, [Mr. Ben- 
ton.] 

The position which that gentleman occupies in 
this House, arising out of his great experience 
and acknowledged ability, gives to any argument 
he advances a personal influence which, per- 
haps, does not attach to any other member of this 
body. Not only this House, sir, but the whole 
country, feel and acknowledge it. 

I will, therefore, trespass upon the House for 
awhile, although in doing so I follow somewhat in 
the wake of my distinguished friend from Vir- 
ginia, [Mr. Bayly,] and the able Representative 
from Pennsylvania, [Mr. Jones.] 

The bill before us, introduced by the chairman 
of the Ways and Means, appropriates the sum of 
ten millions of dollars to enable the President to 
fulfill the third article of the treaty lately concluded 
between this country and Mexico. 

The gentleman from Missouri, in the outset of 
his opposition, denounces this measure as coun- 
tenancing what he was pleased to term an " inva- 
sion of the privilege of this House." Sir, I was 
struck with the use of that word "privilege," 
falling, as it did, from a gentleman so notoriously 
choice and discriminating in the use of his terms. 
The privilege of this House ! Sir, I deny that 
we have any "privilege" to be invaded. The 
rights, the duties, the powers of this body do not 
rest in "privilege," but in constitutional and 
legal grants and limitations. Looking to the par- 
liamentary law of England, from whence this 
word is borrowed, we find that " privilege " is a 
bounty granted by favor of the King. The learned 
commentator upon the laws of England says: 

"The Kingis the fountainof honor, of office, and of priv- 



ilege ; and this in a different sense from that wherein he 
is styled the fountain of justice ; for here he is really the 
parent of them." 

Proceeding upon this theory, it has been the 
custom at the commencement of every Parliament 
since the sixth of Henry VIII, for the Speaker — 
— " [n the name and behalf of the Commons, to lay claim 
by humble petition to their ancient and undoubted rights 
and privileges; particularly that their persons, their estates 
and servants, might be free from arrest and all molestatioa ; 
that they may enjoy liberty of speech in all their debates ; 
may have access to her Majesty's royal person whenever 
occasion shall require ; and that all their proceedings may 
receive from her Majesty the most favorable construction." 

To which the Lord Chancellor replies: 
" Her Majesty most readily confirms all the rights and 
privileges which have ever been granted to, or conferred 
upon, the Commons, by her Majesty, or any of her royal 
predecessors." 

Thus we have the 'English derivation of" priv- 
ilege," which is itself but the reflex of Roman 
jurisprudence, wherein privilege is defined aa 
" an exemption from the operation of a law." If, 
therefore, the term is used to denote any right of 
this House, not clearly derived from the Consti- 
tution, I deny its existence; and if not, then it is 
inappropriate and inapplicable to the character 
of our institutions. 

But, sir, let us come to the question — have our 
constitutional rights been invaded? The gentle- 
man from Missouri asserts that the President is 
bound to obtain the assent of the House of Rep- 
resentatives before he makes a treaty, in every 
case where the treaty would involve any of the 
powers which the Constitution has conferred upon 
Congress. This I understand to be his distinct 
proposition, and upon this his whole argument 
as to the invasion of our " privilege" rests. The 
gentleman shakes his head in dissent. Now, sir, I 
do not desire to answer what has not been asserted ; 
I assuredly understood the gentleman as making 
this specific proposition. 

Mr. BENTON. I am not in the habit of in- 
terrupting gentlemen, but if it is desired, I will 
state my proposition. It is this: that whenever 
a burden is to be imposed upon us by the treaty, 
then we are to be first consulted. 



warn - 

WL 



Mr. PHILLIPS. Well, sir, I find that I neither 
misunderstood or misstated the gentleman's prop- 
osition. I have generalized his objection. The 
special objection is to a case like the present, when 
the treaty requires an appropriation of money 
which cannot be drawn from theTreasury but by 
an act of Congress. As the Constitution confers 
this power upon Congress, it is said by the gen- 
tleman that the treaty-making power is bound to 
consult the House of Representatives, which is 
a coordinate branch of Congress, before entering 
into the treaty. But it is evident, that if this objec- 
tion be sound, it equally applies to every other case 
where a treaty would involve any other power 
conferred upon Congress; such, for instance, as the 
power to lay imposts and to regulate commerce. 
If, therefore, it be an invasion of the rights of this 
House to enter into a treaty which stipulates for 
the payment of money without a prior consult- 
ation, because the Constitution confers upon 
Congress the right to lay and collect taxes, and 
declares that no money shall be drawn from the 
Treasury but in consequence of appropriations 
made by law, it would equally be an invasion of 
those rights to form a treaty without such prior 
consultation which should affect our commercial 
relations, or fix a duty on importations. I repeat, 
therefore, after the explanation of the gentleman 5 
that I understand the objection, when generalized, 
to be as I first announced it. 

Sir, this is a novel and startling proposition; and 
if it had proceeded from a source less distinguished, 
would scarcely deserve further notice or reply. It 
is very true, Mr. Chairman, that the Constitution 
confers upon Congress the powers already stated, 
but it is equally true that the same Constitution 
declares that the President " shall have power, by 
and with the advice and consent of the Senate, to 
make treaties, provided two thirds of the Senators 
present concur." This delegation of power is as 
broad and unlimited as words could make it. 
There is no exception as to the particular character 
of treaty, whether of peace or commerce. Trea- 
ties of every kind are included; and the delegation 
of the trust to the President and two thirds of the 
Senate, by every rule of construction, as effectu- 
ally excludes the House of Representatives from 
participation in the making of treaties, as if the 
clause of the Constitution had done so in ex- 
press terms. But the gentleman from Missouri 
exclaims that we are the Representatives of the 
people ! This is most excellent ad captandum, 
especially when addressed to the members of a 
body whose powers are sought to be enlarged. 
Yes, sir, we are the Representatives of the people, 
but we represent them only according to the Con- 
stitution. We were chosen by the people under 
the Constitution, and they expect us not to seek 
to enlarge our powers, but to perform our duties 
as they are plainly written down for us. In doing 
this, we will vindicate the confidence they have 
reposed in us; in attempting more, we shall justly 
forfeit it. 

But, let me ask, who is the President of the 
United States? Is he not the representative of the 
people? Have they not chosen him to fulfill the 
duties which, by constitutional arrangement, have 
been allotted to the Executive Department of the 
Government? And what is the Senate? Is it not 
also the representative of the people of the several 
States? It is the merest assumption to arrogate 



to ourselves any claim to consideration because 
we alone are the representatives of the people. It 
is true that this branch of the Government is 
called the House of Representatives; but, in a 
constitutional sense, we are no more the repre- 
sentatives of the people than is the President or 
the Senate. But if it were admitted to be true 
that this House was the sole representative of the 
people, the question as to where the Constitution 
vested the treaty-making power would remain 
wholly unaffected by the admission. 

In the formation of our Constitution, the ques- 
tion where to lodge the treaty-making power gave 
rise to great anxiety, and was much discussed. 
That, there was a necessity for the power itself, 
was demonstrated by the history of the world. 
After various propositions to vest it exclusively in 
the President, to require, in conjunction with the 
President, two thirds of all the Senators, to re- 
quire two thirds after special notice and sum- 
mons, with others which my memory does not 
enable me to enumerate, the clause as it now 
stands, was, after grave deliberation and much 
debate, adopted. The President and two thirds 
of the Senators present have full power to make 
treaties, and thus made, the Constitution declares 
them to be " the supreme law of the land." 

In opposition to these emphatic provisions of the 
Constitution, the gentleman from Missouri insists 
upon the right of this House to be regarded as 
part of the treaty-making power. Sir, he can only 
succeed by breaking down the barriers of the Con- 
stitution, and expunging the lines of demarkation 
which assigns to the several departments specific 
and appropriate powers. So numerous are the 
instances in which treaties involve the appropri- 
ation of money or the regulation of commerce, 
that if, in all such instances, the House is to be 
consulted, the case where the President and Sen- 
ate alone would be competent to act would form 
the exception, while the general rule, in practice, 
would include the House as a component of the 
treaty-making power. Nay, more than this; if 
the Constitution required that a prior consultation 
should be had with the House, then the disagree- 
ment of the House should be respected. Itwould 
be a very empty right, if this result did not follow. 
To consult and then act in violation or disregard 
of advice, is very common in ordinary intercourse, 
but this can find no place in any governmental 
arrangement. The result of all this may then be 
thus stated: That the greatest number of our 
treaties involve some of the powers which the 
Constitution has conferred upon Congress. In 
all such cases, it is the duty of the President first 
to consult the House of Representatives; that in 
case the House disagree to the proposed treaty, it 
shall not be made, though the President and every 
member of the Senate be in favor of it. Let any 
plain man compare this with the provision of the 
Constitution conferring the powerto make treaties 
on the President, with the concurrence of two 
thirds of the Senate, and say if we are not justi- 
fied in asserting that the claim of power now made 
is novel and startling. 

Among the propositions upon this subject which 
were presented in the Federal convention, was 
the very one, in effect, now contended for by the 
gentleman from Missouri. It was proposed that 
the House of Representatives should be joined 
with the President and Senate in the making of 



5 



treaties. Doubtless, if the gentleman had been a 
member of that body, with his present opinions, 
he would have sustained the proposition. But as 
it is, sir, so feeble were the reasons which sus- 
tained the proposition, that it was voted down by 
ten States to one. I do not believe, Mr. Chair- 
man, that if the gentleman would isolate his claim, 
as I understand him to announce it, that it would 
receive a greater support here than did the propo- 
sition referred to in the Federal convention. 

The relation which this House bears to the 
treaty-making power, was discussed on two mem- 
orable occasions — in 1796, and again in 1816. 
The debate engaged the highest intellect of the 
House on both occasions, and was conducted with 
great ability. In the first of these cases, the British 
treaty, the House determined they had a right to 
call for the papers connected with it. In answer 
to this, General Washington sent in a message 
denying the right of the House, and refusing 
the papers. In the other case, the question was 
whether it was necessary to pass a bill to make 
our revenue laws conform to the treaty stipulations, 
or whether the treaty itself operated propriovigore. 

Now, in both of these cases, as in the one be- 
fore us, powers conferred upon Congress were 
involved in the treaties. Yet, in the wide and 
extended field of debate, we look in vain to the 
arguments of the most ultra opponents of those 
measures for the suggestion that it was the right 
of the House to be consulted, and that the omis- 
sion was an " invasion of their privilege." This, 
sir, is a revelation reserved for our " day and 
generation. " I do not propose to go into the gen- 
eral debate of this most delicate and intricate sub- 
ject of constitutional law, but rather to confine 
myself to the form in which the question now 
presents itself. I do not consider it necessary to 
determine how far General Washington was jus- 
tified in his refusal to communicate the informa- 
tion which was sought for by the House, or 
whether, in the latter case, it was not proper that 
a bill should be passed by Congress, so modify- 
ing its previous legislation as to make it conform 
to the treaty stipulation; for in the case before us 
no such questions arise. There is no proposition 
before us asking for information; and the bill 
now under consideration is introduced to procure 
such action of Congress as was in 1816 consid- 
ered necessary. In the disagreement between the 
two Houses, which occurred in 1816, as to the 
necessity for such a measure, the committee of 
conference, in their report to the House, say: 

a The committee are not less satisfied that it is by no 
means the intention of the Senate to assert the treaty- 
making power to be in all cases independent of" the legisla- 
tive authority. So far from it, that they are believed to 
acknowledge the necessity of legislative enactment to carry 
into execution all treaties which contain stipulations re- 
quiring appropriations, or which might bind the nation to 
lay taxes, to raise armies, to support navies, to grant sub- 
sidies, to create States, or to cede territory, if, indeed, this 
power exists in the Government at all. In some, or all of 
these cases, and probably in many others, it is conceived to 
be admitted that the legislative body must act in order to 
give effect and operation to a treaty ; and if, in any case, it 
be necessary, it may confidently be asserted that there is no 
difference in principle between the Houses ; the difference 
is only in the application of the principle. 

"The committee, therefore, believe that it is safer in every 
doubtful case, to legislate, and by the joint act of the whole 
Congress, to give authority to the execution of the stipula- 
tions of a treaty by the Executive, than to leave a doubtful 
case without the sanction of the Legislature, to tempt the 
Executive to overleap its proper bounds, or to endanger 



the public faith by a failure to perform the provisions of a 
treaty which has received a constitutional ratification." 

There seems to me much good sense and sound 
reasoning in the report. If, for instance, as in 
Jay's treaty, there was a stipulation as to goods 
imported from Canada in conflict with our laws 
regulating imposts, it is very evident that the 
treaty stipulation should override the act of Con- 
gress, and it would be more conformable to our 
legislative opinions that the same power which 
enacted the law should modify or repeal it, rather 
than this effect should be produced by the treaty 
itself. But, as has been already stated, this is 
outside and beyond the question now presented 
for consideration; for, so far from insisting that 
the execution of the treaty itself appropriates the 
sum stipulated to be paid, the message of the 
President, accompanying the treaty which he has 
transmitted to the House, tells us: 

" To be enabled to comply with the stipulation accord- 
ing to the terms of the treaty relative to the payments 
therein mentioned, it will be necessary that Congress should 
make an appropriation of .$7,000,000 for that purpose be- 
fore the 30th instant, and also the further sum of $3,000 000, 
to be paid when the boundaries shall be established. I 
therefore respectfully request that these sums may be put at 
the disposal of the Executive." 

The bill now before us is in exact conformity 
to the principles laid down in the report of 1816. 

But it is said, sir, that if this House is called 
upon to act, then it is entitled to its own inde- 
pendent judgment as to the propriety or expe- 
diency of the measure, and is entitled to exercise 
the same discretion as in acts of ordinary legisla- 
tion. And if, in their opinion, the treaty should 
not have been made, or if made, should have con- 
tained other terms — that the sum to be paid was 
too much — that the land acquired was too little — 
that the securities given or received were too large 
or too insecure — or for any other objections which 
might have been made, had the measure been 
initiated by the House, then that they are au- 
thorized to defeat the bill, and thus to veto the 
treaty. 

It is very clear, Mr. Chairman, that the discre- 
tion of Congress is unlimited in one particular, 
and that is in the direction of the mode by which 
the fund is to be raised. They may order the 
sum to be paid out of funds now in the Treasury, 
or that it be raised by taxation, or that it may be 
procured by loan. But how far they are justified 
in refusing to vote the money at all, is the ques- 
tion which, I confess, is not altogether free from 
difficulty. 

It does not follow, that, because a duty is as- 
signed to Congress, that they therefore possess an 
unlimited discretion over the subject. For ex- 
ample, it is provided by the Constitution that the 
" President shall, at stated times, receive for his 
services a compensation which shall neither be 
increased or diminished during the period for 
which he shall have been elected." Now, the 
payment of this compensation, like the appropria- 
tion for this treaty, must be drawn from the 
Treasury by an act of Congress. Yet it will 
scarcely be contended that Congress may ex- 
ercise an unlimited discretion whether they will 
pass the necessary bill for the fulfillment of this 
constitutional obligation. 

In my opinion, sir, as the President and Senate 
are, by the Constitution, fully authorized to enter 
into treaties; whenever the aid of Congress is 



6 



required to carry out its provisions, if the treaty 
be within constitutional limits, free from fraud, 1 
and not destructive of any of the great rights or 
interests of the country, then there is a moral 
obligation to grant the aid required. Am I to be 
told, that when a treaty comes before us as this 
does, that we are to proceed in our discussion and 
examination of it as an act of ordinary legis- i 
lation? Such a construction of the powers of!; 
Congress would, in effect, repeal our constitutional 
provision, and nullify the whole power of this;) 
Government in its intercourse with foreign nations. 

What Power, think you, Mr. Chairman, would 
enter into a treaty, involving often the most deli- ; j 
cate considerations, if, after stipulations had been 
maturely considered, agreed upon, and written 
down, they were to be submitted to the unlimited 
discretion of two hundred and thirty-four gentle- 
men, composing the House of Representatives? ; 
The total unfitness of this body for the perform- 
ance of such a duty was so strongly impressed 
upon the minds of those wise men who formed 
our Constitution, that, as we have already seen, j 
a proposition to this end could command the vote | j 
of but a single State. In those celebrated papers, 
which were written to induce the States to adopt! 
the Federal Constitution, the objection to this j I 
proposition is fully and ably stated: 

" The fluctuating, and, taking its future increase into the j 
account, the multitudinous composition of the House of ) 
Representatives, forbid us to expect in it those qualities 
which are essential to the proper execution of such a trust, j 
Accurate and comprehensive knowledge offoreign politics; 
a steady and systematic adherence to~the same views ; a j j 
nice and uniform sensibility to national character; deci- j 
sion, secrecy, and dispatch, are incompatible with the j I 
genius of a body so variable and so numerous. 5 ' 

One other extract from the same work: 

t; It seldom happens in the negotiation of treaties, of] 
whatsoever nature, but that perfect secrecy and immediate 
dispatch are sometimes requisite. There are cases where the i j 
most useful intelligence may be obtained, if the persons 
possessing it can be relieved from apprehensions of discov- j j 
ery. Those apprehensions will operate on those persons, 
whether they are actuated by mercenary or friendly mo- ' 
lives; and there doubtless are many of both descriptions 
who would rely on the secresy of the President, but who 
would not confide in that of the Senate, and still less in ; J 
that of a large popular assembly. The convention have 
done well, therefore, in so disposing of the power of making j 
treaties that, although the President must, in forming them, i 
act by the advice and consent of the Senate, yet he will be 
able to manage the business of intelligence in such a man- j | 
ner as prudence may suggest." 

We cannot do, sir, without treaties; for we are 
a commercial people; nor can we do without a 
Navy, for the same reason. The gentleman, in a 
remarkable speech delivered at an early stage of the 
session, thought we needed no Navy. 1 said then 
the argument was unsound, without it was intended 
that we should cut off all association with foreign 
countries, and live within ourselves and for our- ! 
selves alone. If this be the design, then we can j 
dispense with treaties as well as navies. But un- j 
til this period arrives, treaties are as essential to 
regulate our relations abroad as laws to control 
our obligations at home. 

The argument which gives unlimited discretion 
to Congress in that most numerous class of trea- 
ties which involve the powers conferred on Con- ! 
gress, would embarrass and cripple the treaty- 1 
making power; but the proposition of the gen- j 
tleman from Missouri, requiring the prior con- j 
sent of the House, would absolutely annihilate 
it. And yet the gentleman, in the most excited 



manner, has declared before God that if this po- 
sition is not maintained, that there is nothing in 
the Constitution worth preserving. For one, sir, 
1 am willing to leave to the President and Senate 
the responsibility which the Constitution has 
conferred upon them. One of the reasons as- 
signed for the selection of the Senate, to wit: that 
in that body i( all the States are equally represented, 
and in the House very unequally,^ 1 confess has very 
much influenced my judgment. The States are, 
sectionally, as distinct in their industrial pursuits 
as in their geographical limits; and the Senate, 
where their equality is recognized, will prove the 
best guardian of their State rights. 

If, therefore, Mr. Chairman, the treaty before 
us violates no constitutional right; is free from 
fraud; is not so gross in any of its provisions 
as to justify a resort to extreme action, there is 
an obligation imposed upon us, an obligation 
which arises out of the Constitution itself, to pass 
the bill which is necessary for its fulfillment. I 
pray gentlemen to remember that if they are to 
hold the scales with a nice hand, and scrupulously 
weigh the stipulations of the treaty against its 
money equivalent, that they will not be oblivious 
of the dignity, the honor, and the plighted faith 
of the country. 

But, sir, if we should consider the treaty as an 
act of ordinary legislation, in which we were at 
liberty to exercise the most unlimited discretion, 
there is, to my mind, every inducement held out 
for its adoption. 

Without repeating what has been already said, 
I would remark, that the release from the liabili- 
ties imposed upon us by the eleventh article of the 
treaty of Guadalupe Hidalgo has freed us from a 
most vexatious and dangerous stipulation. Al- 
ready it is understood that claims nearly equal to 
the whole amount of the present consideration 
have been urged upon our attention. The value 
of this release in preserving the peace of the 
country, by determining our boundary, and pro- 
tecting our Treasury from continuing liabilities of 
the most indefinite character, can scarcely be over- 
estimated. 

The addition of thirty-three thousand square 
miles to our territory, by which a southern route 
| to the Pacific is secured to us, a route which has 
; been demonstrated by instrumental surveys to 
! be the shortest and easiest connection which can 
be made with the Pacific, is another item of great 
value. The State of Texas, as is known, has 
made the most liberal grants of land for the pur- 
! pose of projecting the road through her territory, 
a distance of aSout eight hundred miles. The 
first fifty miles of this work is under contract, and 
the enterprise is to be inaugurated on the coming 
anniversary of our national independence. From 
the western border of Texas to St. Diego, on the 
Pacific, is about eight hundred miles, and this 
: treaty furnishes the territory through which this 
portion of the road will pass. What to my mind , 
! sir, a few months ago appeared as an illusion , I now 
regard as a reality. I now believe that a road to 
the Pacific will be built, whether this Government 
affords aid or not, and that the route will be the 
one I have herein indicated. 

The gentleman from Missouri says he is op- 
posed to outside roads, that is, to lines outside of 
: our jurisdiction. But, sir, it strikes me as a little 
| singular, that this objection should be urged against 



[ 



7 



a proposition to incorporate the Territory into our 
Union over which the road is to pass. 

In addition to this, the eighth article of the treaty 
has guarantied to our citizens the right of way for 
a railroad across the Isthmus of Tehuantepec. The 
gentleman from Missouri was among the first who 
recognized the great importance of such a commu- 
nication with the Pacific, and in 1849, as a mem- 
ber of the Senate, introduced a bill directing the 
Secretary of the Navy to contract for carrying the 
mails, via Panama, for twenty years, at a com- 
pensation which was then estimated at an aggre- 
gate of six millions. It was urged in that debate, 
that the instruction should be so worded as to leave 
it discretionary with the Secretary to select the 
Tehuantepec route. This was energetically op- 
posed by the gentleman as hazarding the advan- 
tages of the bill. The gentleman said on that 
occasion: 

" We all know that this Government offered an immense 
sum of money to Mexico for this right of way, and that all 
applications upon this subject have been peremptorily 
rejected. " " I state this as the preliminary objection, an ob 
jection more impossible to overcome than the barrier which 
divides the Atlantic and Pacific oceans from each other." 

I quote this to show that it was the supposed 
impossibility of obtaining the assent of Mexico, 
and not any depreciation of its merits, which con- 
stituted at that period the ground of opposition. 
What the immense sum alluded to was, will be seen 
in the following extract from Mr. Buchanan's 
letter to Mr. Trist, of April 15, 1847: 

" Instead of $15,000,000 stipulated to be paid by the fifth 
article for the extension of our boundary over New Mexico 
and Upper and Lower California, you may increase the 
amount to any sum not exceeding thirty millions, payable by 
installments of three millions per annum, provided the 

RIGHT OF PASSAGE AND TRANSIT ACROSS THE ISTHMUS OF 

Tehuantepec, secured to the United States by the 

EIGHTH ARTICLE OF THE PROJECT, SHALL FORM A PART 
OF THE TREATY. 

" Whilst it is of the greatest importance to the United 
States to extend their boundaries over Lower California, 
as well as Mew Mexico and Upper California, you are not 
to consider this as a sine qua non to the conclusion of a 
^ ty ' ,7 ou will > therefore, hot break off the negotiation 
it New Mexico and Upper California can alone be acquired. 
In that event, however, you will not stipulate to pay more 
than $20,000,000./or those two provisions, without the right 
of passage and transit across the Isthmus of Tehuantepec. » 

The eighth article of the projet here referred 
to, is in effect what the eighth article of the pres- 
ent treaty stipulates, to wit: the right of transit 
for the mail, troops, and munitions of the United 
States, and the persons and property of our citi- 
zens. r . , 



" The Mexican Government having alno agreed to protect 
with its whole power the prosecution, preservation; and 
security of the work, the United States may extend its 
protection, as it shall judge wise to it, when it may feel 
sanctioned and warranted by the public or international 
law." 

It will be thus perceived that a former Admin- 
istration estimated this right of way at a greater 
value than the sum now agreed to be paid for the 
combined advantages of the treaty. It would 
seem to have been the opinion of the gentleman 
from Missouri, that so covetous was Mexico of 
its exclusive benefits, that the difficulty in obtaining 
such a right from that Government was, " more 
impossible to overcome than the barrier which 
divides the Atlantic and Pacific oceans from each 
other." 

Much has been said as to the fact that the treaty 
was first negotiated at twenty millions, and that 
the same treaty in effect is now negotiated for ten 
millions, and the conclusion I suppose from this 
is, that by huckstering we might have obtained it 
for five millions. I feel very much, sir, as if the 
Senate had somewhat counted on the exigencies 
of the Mexican Government and the personal 
need of the Dictator, in driving a hard bargain 
with them. I am far from charging this, but the 
circumstances, the " surroundings, "are calculated 
to create that impression. If we desire to treat, 
let us treat on fair and honorable terms, giving a 
just equivalent for all we obtain. Let us treat 
with Mexico the most debilitated, as we would 
with Russia, the most energetic of Governments. 

Much has been spoken as to rumors of frauds 
and corruption in connection with this treaty. 
The very air is said to be polluted by them. But in 
what they consist, or by'whom perpetrated, even 
rumor, with her thousand tongues, has not yet told 
us. The absence of the correspondence is also 
made the groundwork of the gravest suspicions; 
but gentlemen, in the indulgence of prurient imag- 
inations, seem to forget that, whatever of distrust 
their hostility to the Executive has generated, the 
treaty has received the vote of over two thirds of 
the Senators present, and that this mysterious 
correspondence, which, like Pandora's box, when 
opened would let out such innumerable evils, was 
all before the Senators before they ratified the 
treaty. A decent respect, therefore, for a coordi- 
nate department of the Government should, at 
least, with all liberal-minded men, create a pre- 
sumption of fairness not to be overcome by the 
gossiping slanders of the hour. 





SUBSTANCE OF ADDRESS 



N 



LAYING THE CORNER STONE 



OP THE 



K Y 



Pi PHILLIPS, Esq. 



New Orleans, February 37, 1866. 



NEW ORLEANS : 

ISAAC T. HINTON, BOOK AND JOB PRINTER, 27 COMMERCIAL PLACE. 
1366, 



s 

) 



1 

{ 



I 



Friends and Fellow-Citizens: 

A day or two ago I was requested to take part in 
this interesting celebration. I deeply regret that want 
of time and opportunity has prevented even an attempt 
on my part to prepare an address worthy of this brilliant 
assembly and suitable to the dignity of the occasion. 

The theme is one well calculated to inspire the 
poet or the orator; but without the qualifications of 
either, you must accept in lieu of "thoughts that 
breathe and words that burn," a few unrehearsed 
reflections, clothed in the simple language of the 
heart. 

It is not to celebrate the triumphs of war w r e have 
assembled here to-day. Victory is often too dearly 
purchased, and the wreath of the conqueror too fre- 
quently moistened with the tears of the widow and 
the orphan. 

It is not to commemorate a party success, or to 
rejoice over the inauguration of some political tenet. 
Time, the great teacher, demonstrates how vain is the 
judgment of man, and how unexpectedly the apple of 
his desire turns to ashes on his lips. 

These and the like, concern the relation of man to 
man, and partake of his weakness and his frailty. 
But it is that higher relation, blazoned by unfaltering 
light, the relation of man to his Creator, which now 
fills your souls, inspires your minds, and challenges 
your action. 



2 

Differ as men may as to the forms and dogmas of 
religion; speculate and philosophise as they will; far 
beyond all dispute, and high above the region of 
doubt, there stands, by the common consent of all 
mankind, in glorious effulgence, the clear recognition 
of a Great First Cause, or Creative Power. 

An abiding confidence in an overruling Providence 
has in all times been the pervading law governing and 
controlling the thoughts of men. No people has yet 
been discovered utterly destitute of this religious faith. 
It is independent of the demonstrations of logic; it is 
independent even of revelation itself; it is a principle 
implanted in the heart of man ; it is part and parcel 
of his nature: he feels its truth, and therefore knows 
it to be true. The ignorant and the educated, the 
savage and the civilized, all concur in this common 
creed, which makes them subjects of one dominion, 
whose Lord is the King of the Universe. 

Here, then, you stand in the clearest light and under 
the noblest sanctions to put your hands to the work 
of raising to the Most High a building fitted for His 

O O CD 

worship, according to your ancient laws and ceremo- 
nies, no jarring discord, no unhappy doubt " to 
give you pause." On then with the work ! Let the 
Corner Stone be laid. Let the Temple arise in all 
the majesty of its fair proportions, and under the 
shadow of its consecrated dome, may you forever 
''rejoice in the Lord your God, with your sons and 
your daughters, and with the Levites and the strang- 
ers that are within your gates." 



3 



Strange and paradoxical as it may seem, it is never- 
theless a truth, verified by history, that notwithstand- 
ing the concurrence of sentiment to which we have 
referred, Religion, far beyond all other causes, has 
been made the basis of the most bloody persecutions, 
and the most revolting crimes. Need I cite in illustra- 
tion, that in Holland and Friesland, during one period, 
more than thirty thousand persons suffered death at 
the hands of Justice, for anabaptist errors. That in 
Spain, during eighteen years of Torquemada's admin- 
istration, over one hundred thousand were punished, 
nine thousand of whom were publicly burned. That 
in Andalusia, during a single year, two thousand Jews 
were put to death, and seventeen thousand subjected 
to a penalty little less severe than the stake. 

These are but a few items in that vast catalogue of 
crime and fully which, from time to time, has thrown 
the pall of mourning over the four quarters of the 
habitable globe. 

This physical suffering, so well calculated to arrest 
attention, has caused us, in a great degree, to overlook 
the moral evil. We ponder over the fate of the mar- 
tyrs; of those who fell by the sword, perished on the 
rack, or were burned at the stake ; but who will count 
the numberless thousands, driven by fear to abandon 
their cherished principles, and to assume an apostacy 
which the heart abhorred? Who will estimate the 
baleful consequences of making the lives of men a 
daily lie, in substituting hypocrisy for truth, and thus 



4 



driving them, " to secure safety by falsehood, and to 
purchase immunity with deceit?" Far greater than 
the destruction of life, has been the loss to humanity 
by the corruption thus engendered. Those who died 
by violence left a void in population easily filled; but 
those who thus lived, tainted the moral atmosphere, 
and impregnated it with vice and crime. 

Dispersed among all the nations, with no political 
power to protect them, the Jews have suffered most 
from religious intolerance and persecution. But 
though they no longer beheld the pillar of cloud by 
day, and the pillar of fire by night; though they no 
longer saw the law being given from Sinai, nor heard 
the thunder rolling from Horeb, they submitted to their 
sufferings with a heroism which has excited theadmi- 
ration of the world. Time and again they have been 
despoiled of their wealth — they have been driven as 
exiles into strange lands — they have been subjected 
to the most cruel torture, exposed to the most fright- 
ful death ; but in the midst of all, and in defiance of 
all, in the depth of woe, and in the darkness of despair, 
they ever marched firm and steady in their faith, and 
never furled that banner, consecrated to the Unity of 
God! 

Happily for us, happily for all mankind, we live in 
an age free from these enormities. The great discov- 
eries which have facilitated the intercourse of nations, 
have liberalized the minds of men. The advance in 
political knowledge is rapidly dissolving the union of 



5 



Church and State, a union which has been the fruit- 
ful parent of much of the evil, and founded in the 
ignorance of rulers as to their proper functions.* 

The recognition of the truth, that the State had no 
concern with the opinions of men, and no right to 
interfere with their religious principles, would have 
saved Europe from the disasters attending upon a 
hundred and fifty years of religious wars, religious mas- 
sacres, and religious persecutions; but this principle of 
political justice was formerly unknown, or at least 
unheeded; and it was not until the middle of the sev- 
teenth century, that the great religious contests were 
brought to a final close ; no nation having for more 
than two hundred years made war upon another on 
account of its religion.^ Every where in Europe the 
principle of toleration is steadily advancing its claims, 
and Kings and Parliament are responding to the spirit 
of the age, in laws which extend political rights with- 
out regard to religious opinions. 

It was reserved, however, for those great and wise 
men who laid the foundation of our new system of 
government to make such an advance as to leave the 
policy of toleration far in the rear. Toleration is the 
mere grace of power, and implies, in the right to 
grant, the right to withhold. Profiting by the expe- 

* Unhappy are the States where it has been sought to produce uniformity of 
religious opinion by penal laws. The choice of religion is a matter of individ- 
ual prudence. If men are persuaded that their eternal happiness depends upon 
a certain worship, or certain faith, what can the Legislature oppose to such an 
interest ? — Dumonfs Bentham. 

f Buckled History of Civilization. 



6 



rience of the past, and conscious of the evils that this 
government connection had produced, they were not 
willing to leave this great subject to the chances of 
administration, but boldly denounced the alliance, 
and denied the jurisdiction of government. Not con- 
tent with the provision, that " no religious test should 
ever be required as a qualification for any office of 
profit or trust," they laid deep the principle prohibit- 
ing Congress from ever making any " law respecting 
an establishment of religion, or interfering with the 
free exercise thereof." Thus, to worship God accord- 
ing to the dictates of one's own conscience, is no 
longer dependent on privilege or toleration, but is 
based on the immutable principle of right and justice. 

Glorious Constitution ! Noblest monument to the 
wisdom and patriotism of man! To us, a citadel of 
safety ; to all other peoples, a beacon of hope! May 
it be rescued from the impious hands which now assail 
it; may we forever cherish it, while living, as our 
chiefest good ; and 16 dying, bequeath it as the richest 
legac}^ to posterity." 

Contemplating the particular work before us, memory 
recalls events which the lapse of centuries has not 
obscured, but which live to-day, in all the freshness 
and vividness of new creations. To our " mind's 
eye," the vision of Jerusalem rises above the horizon, 
crowned with that splendid Temple, whose gorgeous 
architecture gives back the sun's rays with undimin- 
ished splendor! There are its marble pillars, its pin- 



7 



nacles of gold, its fretted dome, its carved interior, 
tilled with ornaments of rarest material. Far as the 
eye can reach, the roads and pathways are thronged 
with people. It is the anniversary of a national festi- 
val, and the faithful of all the tribes, and from all the 
provinces, old and young, rich and poor, are hastening 
on their pilgrimage to that sacred shrine, at once the 
representative of their faith and their national glory. 

But the scene changes! The bright vision is gone ! 
"Hung be the heavens in black," for our eye is' now 
seared with the sight of shattered columns, broken 
arches, crumbling walls, ; and smouldering ruins. 
" Grim visaged war has yoked the red dragons of his 
iron car," and as he drives along, desolation follows 
on his track. 

I need enter into no details of the destruction of the 
Temple, for it is familiar history to all. The hero- 
ism displayed in its defence, the desperate valor, the 
voluntary sacrifice of life, would have commanded 
the highest admiration, were they not obscured by 
the miserable dissensions and wicked rivalries which, 
potent as the Roman arms, hastened the sad catas- 
trophe. Amid these jarring elements was then heard 
the frenzied warning of the son of El Hakim, who 
wandering by night, up and down the streets of the 
city, cried, " A voice from the East, a voice from the 
West, a voice from the four winds, a voice against the 
bridegroom and the bride, a voice against the whole 
people. Woe! woe! woe to Jerusalem ! " The voice 
was indeed heard, but it passed by the rulers as the 



H 

idle wind, and thus the pride and glory of the Hebrew, 
the unity of his worship, and his nationality found a 
common grave! Well may we then repeat the glow- 
ing imagery of the "Lamentations:" 

"How doth the city sit solitary, she that was full of 
people : how is she become as a widow, she that was 
great among the nations, and princes among the prov- 
inces. How is she become tributary? 

She weepth sore in the night, and her tears are 
on her cheeks. Among all her lovers, she finds none 
to comfort her." 

Great as was this fall, and influential as were its 
consequences, all was not lost. With the ashes of 
this one ruined temple, the Almighty hand has sown 
broadcast over the land the seed from which a thou- 
sand temples have sprung! The building reared by 
the handicraft of man has perished; but the principles 
which consecrated it still live! These are of God, and 
therefore indestructible. Nor time, nor place, nor 
circumstance, can tarnish their lustre, nor impede their 
progress. Their march is ever onward. Christianity 
and Mohamedanism, its two giant offsprings, are 
spreading their wings, and soon will cover with their 
shadow every portion of the habitable globe. I look 
into the future, and methinks I see the coming day, 
radiant in glory, and jocund with celestial music, in 
which, though differing in creeds and forms of wor- 
ship, the voices of all shall unite in the grand anthem, 
" Hear, Israel, the Lord our God, the Lord is 
ONE!" 



I 



